Isiye v Kharinda & another (Environment and Land Case E017 of 2022) [2026] KEELC 694 (KLR)
The bottom line
#A Kenyan court refused to pause eviction because the losing party showed no real loss beyond facing the lawful eviction itself.
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 to the Court of Appeal
Key legal issues
#Whether the applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6
The application was dismissed because the applicant failed to demonstrate substantial loss, the cornerstone of the jurisdiction.
Order 42 Rule 6 requires an applicant to demonstrate substantial loss, that the application was made without unreasonable delay, and willingness to provide security. The applicant's claim of occupation had been considered and rejected at trial, and the allegation alone could not constitute substantial loss. Execution is a lawful process and its commencement or the prospect of eviction does not by itself amount to substantial loss. The court had determined the parties' rights on the merits and could not sit on appeal over its own decision or assess the arguability of the appeal.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction for granting stay of execution.
- A first-instance court cannot interrogate the arguability of an appeal against its own decision.
Court orders
#- 1.The application dated 5th May 2025 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment delivered on 6th March 2025 pending appeal to the Court of Appeal
The applicant failed to demonstrate substantial loss; mere allegations of occupation and imminent eviction do not constitute substantial loss where the court had already ordered eviction.
Costs of the application
The applicant's application was found without merit and was dismissed with costs to the respondent.
Costs
Application dismissed with costs to the respondent
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.
In the premises, I find no merit in the application dated 5th May 2025 which I hereby dismiss with costs to the respondent.
Imminent eviction in itself is not proof of substantial loss where the court in its judgment has ordered eviction, like in this case.
Allegations that there is an arguable appeal at the Court of Appeal have no bearing on an application such as the one now before court
Issues in the judgment
#Judgment refers to the applicant inconsistently by gender pronouns ('her claim', 'she does not live there' versus 'his father' and 'he has not offered any security')
Judgment date (4th February 2026) post-dates the respondent's submissions dated 22nd September 2025 while the application is of 5th May 2025; no internal contradiction but date sequencing is unusual
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isiye v Kharinda & another (Environment and Land Case E017 of 2022) [2026] KEELC 694 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/694/eng@2026-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.