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ELCDismissedNot stated in judgment

Onyango v Makanyanga & another (Environment and Land Case 178 of 2016) [2026] KEELC 1711 (KLR)

Environment and Land Court
4 March 2026
897 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega refused to pause eviction because the applicant waited three months too long and showed no real harm.

What this practically means

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Executive summary

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The 2nd defendant moved the court by Notice of motion dated 16th October 2025 seeking stay of execution of the judgment delivered on 27th March 2025 pending hearing and determination of Kisumu Court of Appeal Civil Appeal No. E136 of 2025. He swore that he was dissatisfied with the judgment, had filed an appeal with high chances of success, had established a home on the suit property since 1964, and feared imminent eviction after seeing officers of Highland Auctioneers surveying the property. The plaintiff, Boniface Onyango, opposed through a replying affidavit sworn on 28th October 2025, asserting that the applicant was in unlawful occupation, that the application was late since the 120 days' stay granted in the judgment lapsed on 25th July 2025, that no substantial loss was shown, and that the applicant was selling the suit property to strangers. The court framed a sole issue: whether the applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The court held that an applicant must demonstrate imminent substantial loss, absence of unreasonable delay, and willingness to provide security, and that imminent execution alone is insufficient because execution is a lawful process. The application, filed about three months after expiry of the 120-day period to vacate, was found to be brought after inordinate delay and while the applicant was in unlawful occupation. The court declined to revisit its prior determination of the 1964 occupation or to assess the appeal's arguability. The application was dismissed with costs to the respondent on 4th March 2026.

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 threshold for stay of execution pending appeal under Order 42 Rule 6

Holding

The applicant failed: the application was brought after inordinate delay (about 3 months after the 120-day vacate period expired) and the applicant was already in unlawful occupation; substantial loss was not demonstrated to the court's satisfaction.

Reasoning

Order 42 Rule 6 requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security has been given. The judgment of 27th March 2025 granted 120 days to vacate, expiring 27th July 2025; the application was filed 16th October 2025. Long occupation since 1964 was a matter already determined in the judgment and could not be revisited. Arguability of the appeal is beyond the trial court's jurisdiction at this stage.

p. 3

Legal principles established

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  • To succeed in an application for stay of execution pending appeal, an applicant must demonstrate imminent substantial loss, absence of unreasonable delay, and willingness to provide security; imminent execution alone is insufficient.
  • Substantial loss is the cornerstone for grant of stay of execution pending appeal.

Court orders

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  1. 1.The Notice of motion dated 16th October 2025 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the respondent/plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment delivered on 27th March 2025 pending hearing and determination of Kisumu Court of Appeal Civil Appeal No. E136 of 2025

The application was filed after inordinate delay, about 3 months after expiry of the 120 days granted to vacate, and the applicant failed to demonstrate substantial loss; the court cannot revisit issues already determined or interrogate the appeal's arguability

p. 2

Costs

Application dismissed with costs to the respondent.

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.

to succeed in seeking stay of execution pending appeal, an applicant ought to demonstrate imminent substantial loss; that they have sought stay without unreasonable delay and that they are willing to provide security for the due performance of the decree
p. 2Threshold for stay of execution pending appeal
I therefore find and hold that the application herein was filed after inordinate delay and when the applicant was already in unlawful occupation of the suit property.
p. 2Inordinate delay
The upshot is that I find no merit in the application dated 16th October 2025, which I hereby dismiss with costs to the respondent.
p. 3Final orders - dismissal
It is so ordered
p. 3Disposition

Issues in the judgment

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minor

The judgment does not state the case number or cite the underlying judgment/court details for the decree sought to be stayed beyond the pending appeal number (Kisumu Court of Appeal Civil Appeal No. E136 of 2025); parties other than by role (2nd defendant applicant, plaintiff respondent) are not fully named in the judgment text.

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, "Onyango v Makanyanga & another (Environment and Land Case 178 of 2016) [2026] KEELC 1711 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1711/eng@2026-03-04

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