Tabitha Opete & 2 others v Wilson Muyonga
The bottom line
#The High Court in Kakamega stopped an eviction pending appeal, because destroying the occupants' homes and crops could never be undone if they won.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has met the threshold for grant of orders of stay of execution pending appeal
- 2.Whether the court should grant orders of injunction to stop the respondent from evicting the appellants from the suit property
Key legal issues
#Substantial loss for stay of execution pending appeal
The appellants demonstrated substantial loss because their homes and crops on the suit property would be destroyed by eviction and may not be recoverable if the appeal succeeds
The court found that the appellants had homesteads and crops on the land and a justified apprehension that eviction would destroy them, and that the respondent inadequately answered this by pointing to the appellants' other parcels. Destruction of homes could not be undone even on a successful appeal, satisfying the Order 42 Rule 6(2)(a) threshold.
Security for due performance of the decree
No security ordered because the land remains in place and its character is unchanged
The court held that land as subject matter does not move and no evidence of change of character was presented, so requiring security would unnecessarily fetter the appeal while the substratum of the appeal is preserved without it.
Separate injunction/status quo prayer
Unnecessary because the stay of execution already encompasses the eviction orders
The status quo order sought was framed as a restraining order against eviction only against one party. Since the stay of execution stays all orders of the trial court including eviction, granting an additional restraining order would be duplicative and of no practical purpose.
Merits of the appeal (jurisdiction, trust, adverse possession)
Not addressed at this interlocutory stage to avoid embarrassing the appeal's determination
The court declined to consider arguments on whether the trial court had jurisdiction over adverse possession or whether trust was proved, holding these are merits issues for the appeal itself and should not be pre-judged on a stay application.
Legal principles established
#- Imminent execution alone does not justify stay; the applicant must show substantial loss that would render the appeal nugatory
- Where the subject matter is land which remains where it is, security for due performance need not be ordered
Court orders
#- 1.Pending the hearing and determination of the appeal, the execution of the judgment in Kakamega MCL&E No. E225 of 2024 is stayed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kakamega (Magistrates' Court, MCL&E)
- MCL&E No. E225 of 2024
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction to stay execution and grant temporary injunction pending appeal)
Relief refused
#Order of restraining the respondent from evicting the appellants (status quo injunction)
It has essentially the same import as the stay of execution, which already covers the eviction orders
Costs
There is no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That pending the hearing and determination of the appeal herein, the execution of the judgment in Kakamega MCL& E No. E 225 of 2024 is hereby stayed.
There is no order as to costs.
the appellants have demonstrated that they stand to sufier substantial loss if the orders of stay pending appeal are not granted, and therefore they deserve the orders sought
I therefore do not think that an order for security is necessary in the circumstances of these proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabitha Opete & 2 others v Wilson Muyonga", Case Analysis (2025). Notice of Motion dated 13th January 2025 (appeal against judgment in Kakamega MCL&E No. E225 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/173/eng@2025-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.