Joseph Maroa Maswi v Magabe Mwita Wambura & 15 Others

JAMES WANSATO……………………………………..15TH DEFENDANT JOHN WANSATO………………………………………..16TH DEFENDANT RULING 1. The defendants filed a notice of motion dated 14 th August, 2026 seeking for the following orders: 1) Spent 2) Overtaken by events 3) That the execution of the judgment of this Honourable Court dated 31st July, 2026 be stayed pending the hearing and determination of ELC Appeal No. E023 OF 2026 filed at the High Court in Migori. 4) That costs of this application be in the cause. 2. The application is based on the grounds on the face of the application and the affidavit of NYAMBARI MWITA sworn on 14 th August, 2026. The grounds are that the applicants have filed Migori ELC LA NO. E024 OF 2026 as evidenced by annexure marked “NM2”. That the applicants will suffer substantial loss if the execution of the judgment dated 31/7/2026 proceeds before the hearing and determination of the said appeal. That the applicants are ready and willing to abide by such orders of security as may be ordered or imposed by this Honourable Court as a condition for stay of execution. That the appeal raises serious legal issue which merit to be heard and determining before execution can be done. That the appeal has been filed without any delay as indeed the judgment was delivered on 31/7/2026. 3. The plaintiff filed a replying affidavit sworn on 25 th August, 2026 in opposing the application. The grounds are that the court adjudged the respondents as trespassers. That DW1 purported to give evidence on behalf KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 2

page 2 of 9

of the 15 defendants but he had no such authority to plead on behalf of the 15 defendants neither had they recorded their statements. That the applicants now have purported to donate the authority to plead to NYAMBARI MWITA for purposes of this application for stay despite the fact that no such authority was ever given during the trial. 4. That orders of stay pending appeal are discretional and the court can only exercise the same for good reasons particularly where the applicant has an arguable appeal. That in the event this court considers the applicants application favorably, the applicants should each deposit a sum of Kshs. 100,000/= in line with the judgment delivered by the court together with the party and party costs. 5. The application was canvassed by way of written submissions. Analysis and Determination 6. The issues for determination in an application for stay of execution are provided for under Order 42 Rule 6 of the Civil Procedure Rules. If an Applicant meets the requirements under the said order, then the court can grant the orders as prayed. 7. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules outlines the guiding principles to be met for the grant of stay and provides that:“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 KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 3

page 3 of 9

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. 6(2)No order for stay of execution shall be made under sub-rule (1) unlessa.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 such security of costs for the performance of such decree or order as may ultimately be binding on him has been given by Applicant.” 8. Going by the above provisions, it is clear that in an application for stay of execution pending Appeal, the Applicant must satisfy the following three conditions: 1) The Court is satisfied that substantial loss may result to the Applicant unless the order is made. 2) The application has been made without unreasonable delay. 3) Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the Applicant has been given by the Applicant. 9. In considering an application for stay of execution, I am guided by the case of Butt Vs Rent Restriction Tribunal (1982) KLR 417 where the Court of Appeal gave the following guidelines:“The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is; if there is no KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 4

page 4 of 9

overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. A judge should not refuse stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the Applicants at the end of the proceedings. The court in exercise of its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.” 10.The grant of an order of stay of execution is a discretionary one. In the case of RWW v EKW (2019) eKLR the Court held that:“…the purpose of an application for stay of execution pending an appeal is to preserve the subject in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory. However, in doing so the court should weigh the right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of damages.” Substantial Loss 11.On the first condition of proving that substantial loss may result unless an order of stay is granted, the Applicant should not only state that he is likely to suffer substantial loss, he must prove that he will suffer substantial loss if stay orders are not granted. KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 5

page 5 of 9

12.In so finding, I am guided by the holding in the case of Charles Wahome Gethi Vs Angela Wairimu Gethi (2008) eKLR where the Court of Appeal held that:“….it is not enough for the Applicants to say that they live or reside on the suit land and they will suffer substantial loss. The Applicants must go further and show the substantial loss that the Applicants stand to suffer if the Respondent execute the decree in this suit against them.” 13.What amounts to substantial loss was expressed by the Court of Appeal in the case of Mukuma Vs Abuoga (1988) KLR as follows:“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 14.Has the applicant demonstrated substantial loss? In the case of Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court stated that: “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.” 15.In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR the Court expressed itself as hereunder:“... 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.” 16.The Applicants contend that they will suffer substantial loss if execution of the judgment dated 31st July, 2026 proceeds before the hearing and KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 6

page 6 of 9

determination of the said appeal. No evidence was tendered to support these averments and even if there was, it is trite that execution on its own does not amount to substantial loss because it is a lawful process. See the case of James Wangalwa & Another Vs. Agnes Naliaka Cheseto [2012] eKLR. 17.Counsel for the applicants submitted that the judgment rendered by this court against the applicants ordered them to vacate the portion measuring 17.93Ha out of parcel NYABASI/BOMERANI/448 and hand over vacant possession of the suit property to the plaintiff within 90 days from the date of the impugned judgment and that in default by the applicants herein to vacate the suit property in terms of clause (a) therein, an order of eviction shall and the defendants shall be evicted from the suit property. A permanent injunction was also issued against the defendants jointly and severally. 18.Counsel submitted that bearing in mind the judgment, the applicants who have been use, possession and occupation of the suit property risk being rendered squatters and face imminent eviction during the pendency of their appeal. That should the judgment not be stayed, the applicants who are currently in use and possession of the suit land will definitely be evicted out of the suit land thereby subjecting them to substantial loss before the determination of the appeal. That the applicants have their hoses standing on the land and stay thereon. Should their eviction not be stayed, their houses will definitely be demolished. This would be a substantial loss. 19.Counsel for the plaintiff submitted that the applicants must show he will be totally ruined in relation to the appeal if the order of stay is not granted. The applicant is bound to place before the court real and cogent evidence to show that he stands a risk of suffering substantial loss moneywise, and therefore grant the stay. KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 7

page 7 of 9

20.Now, turning to the grounds of appeal and supporting affidavit, the applicants avers they will suffer irreparable harm without disclosing the nature and extent of the loss he will suffer. Submissions should support parties pleadings and should never replace pleadings. The applicants did not disclose in the affidavit the substantial loss they will suffer. 21.Be that as it may, the superior court already found the applicants to be trespassers on the plaintiff’s land. They have nothing to lose if the stay orders are not granted as the suit land belongs to the plaintiff. The defendants have not established why they should remain on the plaintiff’s land. 22.The onus is on the applicants to prove their loss and in the absence; I must agree with the respondent that the applicants have not demonstrated by way of evidence the loss that will be occasioned upon them if execution proceeds. I am afraid the applicants merely left it to the court’s speculation. Whether the application was filed without undue delay 23.The judgment was delivered on the 31st day of July, 2026 while the application was filed 17th August, 2026 which is without undue delay. Security as the Court orders for the due performance of order 24.The applicants averred that they are ready and willing to abide by such orders of security as may be ordered or imposed by this Honourable Court as a condition for the stay of execution. The counsel for the applicants relied on the case of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another (2018) eKLR, where the court stated that: “Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application is not just to deny the respondent the fruits of his judgment. My view is that it is sufficient for the applicant to state that he is ready to provide KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 8

page 8 of 9

security or to propose the kind of security but it is the discretion of the court to determine the security. The applicant has offered to provide security and has therefore satisfied this ground.” 25.Guided by the above authority I find that the applicants having stated that they are willing to provide security, I will grant a conditional stay of execution. In conclusion I hereby grant stay of execution of the judgment delivered on 31st July, 2026 pending hearing and determination of ELC Land Appeal No. ELC E023 OF 2026 on condition that each applicant deposits Kshs. 50,000/= in a joint interest earning account within 30 days from the date herein in default the stay order automatically lapse. Dated, Signed and Delivered in open Court at Kehancha on this 30 th day of September, 2026 virtually via Microsoft Teams. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kigera…….Court Assistant Plaintiff……….absent Defendants……..absent Advocate for plaintiff……..Mr. Owino present H/B for Mr. Abisai advocate Advocate for defendants…..Mr. Achola present KEHANCHA SPMC ELC NO. E024 OF 2025 (RULING) 9

page 9 of 9