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ELCDismissedNotice of Motion dated 18th September 2025

Kilonzo v Kiige; Embakasi Ranching Company (Interested Party) (Environment and Land Case Civil Suit E285 of 2022) [2026] KEELC 533 (KLR)

High Court of Kenya (Environment and Land jurisdiction, per judgment of Hon. Justice E.M. Washe under challenge)
6 February 2026
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a landowner's bid to pause execution of a judgment because he couldn't prove losing the land would cause him irrecoverable harm.

What this practically means

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Executive summary

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This ruling by Mohammed N. Kullow, J, delivered virtually at Nairobi on 6th February 2026, determined a Notice of Motion dated 18th September 2025 in which the defendant/applicant sought a stay of execution of the judgment dated 25th June 2025 and subsequent orders/decree issued by Hon. Justice E.M. Washe, pending the hearing of his application and of his intended appeal, having filed a notice of appeal. He feared eviction from the suit premises and demolition of the developments he had constructed. The plaintiff/respondent opposed, citing inordinate delay of about three months, failure to file a memorandum of appeal, failure to demonstrate substantial loss, and failure to offer security. The court framed a single issue: whether the applicant was entitled to stay of execution under Order 42 rule 6(1) of the Civil Procedure Rules. On delay, the court held the period from judgment (25th June 2025) to filing (18th September 2025) was not unreasonable. However, on substantial loss - which the court described as the cornerstone of stay - the applicant merely asserted eviction and demolition without substantiating the nature of the loss or showing the plaintiff, found to be the legal proprietor, would be unable to compensate him if the appeal succeeded. Relying on Machira, Chabari, China City Construction and Kenya Shell v Kibiru, the court found the applicant had failed to substantiate substantial loss and found it unnecessary to consider security. The application was dismissed with costs to the plaintiff/respondent under section 27 of the Civil Procedure Act.

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 is warranted to the stay of execution orders

Key legal issues

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01

Whether the application for stay of execution pending appeal satisfied the conditions in Order 42 rule 6(1) of the Civil Procedure Rules

Holding

The application was dismissed: delay of roughly three months was held not unreasonable, but the applicant failed to substantiate substantial loss, which the court held was the cornerstone of stay; security for due performance was not reached.

Reasoning

The court applied Order 42 rule 6(1), which requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security be given. The judgment was delivered on 25th June 2025 and the application filed 18th September 2025; the delay was held not unreasonable. Relying on Chabari, China City Construction and Machira, the court held that the applicant, who alleged only eviction and demolition of his developments, did not substantiate the nature of the loss or show the plaintiff could not compensate him if the appeal succeeded.

p. 5

Legal principles established

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  • An applicant for stay of execution must go beyond reciting the statutory words and specify and substantiate the substantial loss claimed; where no substantial loss is proved, the stay application fails and the question of security need not be considered.
  • A successful party is ordinarily entitled to the fruits of the judgment, and stay may be granted only in exceptional circumstances on clear evidence of substantial loss.

Court orders

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  1. 1.That the said application is dismissed
  2. 2.The defendant/applicant to pay the plaintiff/respondent costs

The bench

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

Wrote the judgment

Jurisdiction invoked
Order 42 rule 6(1) of the Civil Procedure Rules

Relief refused

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Stay of the judgment dated 25th June 2025 and all subsequent Orders and/or Decree issued by Hon. Justice E.M. Washe, both pending the application and pending the intended appeal

The applicant failed to demonstrate substantial loss; the application was found lacking in merit and dismissed at the threshold of substantial loss, without the court reaching the question of security.

p. 5

Costs

The defendant/applicant to pay the plaintiff/respondent costs, pursuant to section 27 of the Civil Procedure Act (Cap. 21, Laws of Kenya).

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.

In conclusion, the court finds no merit in the defendants/applicants Notice of Motion dated 26th July 2024, and orders as follows: a. That the said application is dismissed b. The defendant/applicant to pay the plaintifi/respondent costs.
p. 5Final orders - dismissal of the stay application and costs
The application failed at the point of lack of substantial loss, on the part of the defendant/applicant, which has been held as the cornerstone of issuance of stay of execution orders
p. 5Substantial loss as the cornerstone of stay
This court is persuaded by the above decisions, and finds that the defendant has failed to substantiate substantial loss.
p. 5Failure to substantiate substantial loss
To be obsessed with the protection of an appellant or intending appellant in total disregard or fiitting mention of the so far successful opposite party is to fiirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion.
p. 4Balancing the rights of the intending appellant against the successful litigant (quoting Machira)
the undisputed purpose of stay pending appeal is to prevent a successful appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal.
p. 3Definition of substantial loss (quoting Chabari)

Issues in the judgment

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material

The final disposition refers to a Notice of Motion dated 26th July 2024, while the judgment opens by describing an application dated 18th September 2025; the dates conflict.

minor

An Interested Party is recorded as appearing at delivery of the ruling but is not identified anywhere among the parties or in the application as described.

minor

The applicant is referred to inconsistently in the singular and plural ('defendant/applicant' and 'defendants/applicants') within the same ruling.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kilonzo v Kiige; Embakasi Ranching Company (Interested Party) (Environment and Land Case Civil Suit E285 of 2022) [2026] KEELC 533 (KLR)", Case Analysis (2026). Notice of Motion dated 18th September 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/533/eng@2026-02-06

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