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ELCDismissedELC Case No. 128 of 2013 (OS)· [2025] KEELC 6810 (KLR)

Nyantika v Nyantika & 2 others; Ogega & another (Plaintiffs to the Counterclaim); Nyantika & 3 others (Defendant to the Counterclaim) (Environment and Land Case 26 of 2018) [2025] KEELC 6810 (KLR)

Environment and Land Court
9 October 2025
1,097 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to pause an eviction order because the applicant only claimed he would suffer loss without explaining what that loss actually was.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisii (Munyao Sila, J) on an application dated 26 June 2025 by the unsuccessful plaintiff seeking stay of execution of a judgment delivered on 17 June 2025 pending an appeal to the Court of Appeal. The underlying suit was an Originating Summons filed on 31 August 2018 in which the applicant claimed 8 acres from parcels Nyaribari Masaba/Bomobea/397 and 398 by adverse possession. The 1st respondent (owner of parcel 397) died in 2019 and was not substituted, so that claim abated. The 2nd and 3rd respondents opposed and counterclaimed for eviction of the applicant and three others from parcel 398. The court dismissed the claims of adverse possession and trust and allowed the counterclaim, giving the applicant 60 days to give vacant possession. The court identified the three conditions in Order 42 Rule 6(2): no unreasonable delay, substantial loss, and security. Delay was not an issue, but the applicant merely asserted he would suffer irreparable loss without elaborating how he used the land for over 40 years. The court held that mere assertion of substantial loss is insufficient and dismissed the application with costs to the respondents. The eviction order therefore stands, subject to appeal.

Key legal issues

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01

Whether the applicant demonstrated substantial loss warranting stay of execution

Holding

The applicant failed to demonstrate substantial loss; merely alleging he would suffer substantial loss without detailing how he uses the land or what loss eviction would cause does not meet the Order 42 Rule 6(2)(a) threshold.

Reasoning

The court noted that every execution causes some loss, but the rules require 'substantial' loss. The applicant, who claimed occupation of over 40 years, gave no elaboration of his occupation or use of the land, making it impossible for the court to assess whether the alleged loss was substantial. Having failed on this limb, the court did not need to consider security, and the application was bound to fail.

p. 3
02

Whether the application was brought without unreasonable delay

Holding

The application was filed timeously; judgment was delivered 17 June 2025 and the application filed 25 June 2025, so this condition was satisfied.

Reasoning

The court found this limb easily satisfied by comparing the date of the judgment with the date of filing the application. However, satisfaction of this condition alone was insufficient, as the decisive condition of substantial loss was not met.

p. 3

Legal principles established

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  • To obtain a stay of execution under Order 42 Rule 6(2), the applicant must demonstrate (i) the application was made without unreasonable delay, (ii) substantial loss, and (iii) due security for performance of the decree.
  • Mere loss is insufficient; the loss must be 'substantial' and must be specifically demonstrated, not merely asserted.

Court orders

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  1. 1.The application for stay of execution pending appeal dated 26 June 2025 is dismissed
  2. 2.Costs of the application awarded to the respondents
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules - stay of execution pending appeal

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, "Nyantika v Nyantika & 2 others; Ogega & another (Plaintiffs to the Counterclaim); Nyantika & 3 others (Defendant to the Counterclaim) (Environment and Land Case 26 of 2018) [2025] KEELC 6810 (KLR)", Case Analysis (2025). ELC Case No. 128 of 2013 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6810/eng@2025-10-09

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