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ELCAllowedNotice of Motion dated 22nd May 2025 (arising from appeal against Kakamega MCELC No. E052 of 2020)

Makhino v Dondo (Environment and Land Appeal E083 of 2024) [2025] KEELC 4600 (KLR)

Environment and Land Court
19 June 2025
ANA. Nyukuri
2,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused eviction from farmland pending appeal, but only because the appellant promised to deposit Kshs. 150,000 as security.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 22nd May 2025 in which the appellant sought stay of execution of a judgment delivered on 27th November 2024 in Kakamega MCELC No. E052 of 2020, in which he was ordered to vacate the suit property and pay general damages of Kshs. 300,000/=. The applicant argued that the respondent had unprocedurally demolished his structures and taken out the decree, that he had occupied and extensively developed the property since 1998 with fish ponds and greenhouses, and that eviction would destroy the subject matter of the appeal. The respondent opposed, contending that the application failed the Order 42 Rule 6 threshold on substantial loss and security, that execution had already been conducted, and that the appeal had no chance of success given recent jurisprudence on magistrates' courts' jurisdiction over adverse possession. The court framed a sole issue: whether the applicant met the threshold for stay. Relying on Butt v Rent Restriction Tribunal, James Wangalwa v Cheseto and Tropical Commodities Suppliers, the court found the applicant was in occupation when the suit was filed, the respondent had not been in occupation despite being registered proprietor, and the applicant's fence had recently been removed. It held that if execution proceeded, the character of the property might be altered, occasioning substantial loss. On 19th June 2025 the court allowed the application, staying execution of the decree pending appeal, conditional on the appellant depositing Kshs. 150,000/= in court within 30 days as security, failing which the stay would stand vacated. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the threshold for grant of orders of stay of execution pending appeal

Key legal issues

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01

Whether the applicant met the Order 42 Rule 6 threshold for stay of execution pending appeal

Holding

Yes; the applicant demonstrated substantial loss, having been in occupation with farming activities, and was granted conditional stay.

Reasoning

The court found that the applicant was in occupation of the suit property when the suit was filed and the respondent, though registered proprietor, had not been in occupation. The applicant's fence had recently been removed, showing execution had begun. If execution proceeded, the character of the property would be altered, entailing substantial loss. Stay was granted on condition that the applicant deposits security of Kshs. 150,000/= within 30 days, failing which the stay lapses.

p. 4

Legal principles established

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  • Execution is a lawful process and imminent execution alone does not amount to substantial loss; the applicant must show substantial loss, no unreasonable delay and willingness to furnish security.
  • Substantial loss is a qualitative concept referring to loss of real worth or value.

Court orders

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  1. 1.Stay of execution of the decree issued in Kakamega MCELC No. E052 of 2020 dated 27th November 2024 pending hearing and determination of the appeal
  2. 2.Appellant to deposit in court Kshs. 150,000/= within 30 days as security for due performance of the decree; in default the stay orders to stand vacated

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

On appeal from
Magistrates' Court (Kakamega)
Kakamega MCELC No. E052 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. That this honourable court hereby issues an order of stay of execution of the decree issued in Kakamega MCELC NO. E052 of 2020 dated 27th November 2024 pending hearing and determination of this appeal.
p. 4final orders - stay granted
The appellant shall, in 30 days of this ruling, deposit in court, a sum of Kshs. 150, 000/= being security for the due performance of the decree that may issue against him. In default, the orders of stay granted herein above shall stand vacated.
p. 4security condition
Substantial loss is what has to be prevented by preserving the status quo Because such loss would render the appeal nugatory.
p. 4substantial loss (as cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Makhino v Dondo (Environment and Land Appeal E083 of 2024) [2025] KEELC 4600 (KLR)", Case Analysis (2025). Notice of Motion dated 22nd May 2025 (arising from appeal against Kakamega MCELC No. E052 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4600/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.