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ELCPartially AllowedNot stated in the judgment

Omari (Suing as the Legal Administratix of the Estate of Peter Omari Makworo Deceased) v Wandwi & 2 others (Environment and Land Case E006 of 2022) [2026] KEELC 2753 (KLR)

High Court of Kenya (first-instance court whose decree stay is sought from)
30 April 2026
2,355 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won temporary protection from losing his land on appeal, but only after paying Ksh. 200,000 into court and filing his appeal within 45 days.

What this practically means

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Executive summary

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The applicant, the defendant in a concluded land suit, moved the court by notice of motion dated 9th December 2025 seeking stay of execution of the court's decree pending Kisumu Court of Appeal Civil Appeal No. E230 of 2025. He invoked Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. Judgment had been delivered on 21st July 2025 allowing the plaintiff's suit, and a 90-day stay had been granted at the time. The respondent, who held letters of administration ad litem, opposed the application, arguing that the suit property had been found to be fraudulently registered in the applicant's name, that the applicant had not satisfied the Order 42 Rule 6 conditions, that a tentative appeal does not exist in law, and that the application was an abuse of process. In written submissions the applicant relied on Patel & another v Njeru, while the respondent relied on Hussein Alo M Khaki, Daniel Macharia Thuo, and Elizabeth Kango. The court framed a single issue: whether stay of execution pending appeal should be granted. Applying Order 42 Rule 6, and the authorities defining substantial loss including Century Trading, Kenya Shell v Kibiru and John Gachanja Mundia, the court found substantial loss, no unreasonable delay, and balanced the respondent's right to enjoy the fruits of judgment against the applicant's right to a viable appeal. It granted stay conditional on the applicant depositing Ksh. 200,000/= as security and filing the record of appeal within 45 days, failing which the stay lapses automatically.

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 should be granted stay of execution orders pending appeal

Key legal issues

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01

Whether the applicant demonstrated substantial loss warranting stay of execution pending appeal

Holding

The applicant would suffer substantial loss if the titles were cancelled without the position being safeguarded, as this would render the appeal nugatory

Reasoning

The court applied precedent defining substantial loss as more than the ordinary loss every judgment debtor suffers. It found cancellation of the applicant's titles and registration in the respondent's name would render the intended appeal nugatory. Guided by John Gachanja Mundia, the court took a wider sense of justice informed by the overriding objective and constitutional substantive justice, and balanced the respondent's right to enjoy the fruits of judgment against the applicant's right to pursue his appeal.

p. 5
02

Whether the application was made without unreasonable delay

Holding

The application was made without unreasonable delay and this was not contested

Reasoning

The court noted the 90-day stay granted at judgment had expired and the applicant filed the application shortly thereafter, explaining a few days' delay in confirming availability of the physical court file for extracting the decree and lodging the tentative appeal. The respondent did not allege delay. The applicant had also filed a notice of appeal and a draft memorandum of appeal, supporting timeous pursuit of the appeal.

p. 5
03

Whether security for the due performance of the decree should be given

Holding

Stay granted on condition that the applicant deposits Ksh. 200,000/= in court as security and files the record of appeal within 45 days

Reasoning

In balancing the parties' interests, the court conditioned the stay on security for the due performance of the decree and on diligent prosecution of the appeal, providing that failure to deposit the security and file the record of appeal within 45 days would cause the stay to lapse automatically. This operationalises the third Order 42 Rule 6(2) condition while preserving both parties' rights.

p. 5

Legal principles established

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  • An appeal does not operate as an automatic stay of execution; stay may only be ordered by the court appealed from for sufficient cause under Order 42 Rule 6(1)
  • Stay pending appeal requires substantial loss, absence of unreasonable delay, and security as the court orders
  • Substantial loss is qualitative, not an ordinary consequence of losing a case; it is loss that would render the appeal nugatory and is measured against the wider sense of justice anchored in substantive justice

Court orders

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  1. 1.Stay of execution of the decree pending appeal granted on conditions
  2. 2.The applicant compelled to deposit in court Ksh. 200,000/= as security for costs
  3. 3.The applicant to simultaneously file the record of appeal within 45 days from the date of the ruling, failing which the stay of execution order will lapse automatically

The bench

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

majority

Wrote the judgment

On appeal from
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Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 42 Rule 6(1), Order 9 Rule 9 and Order 51 of the Civil Procedure Rules 2010

Relief refused

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Unconditional stay of execution of the decree pending Kisumu Court of Appeal Civil Appeal No. E230 of 2025 and costs of the application on cause

Stay granted only on conditions of security and filing of the record of appeal; no express costs order in favour of the applicant

p. 5

Costs

No express costs order made in the final orders; the applicant had sought costs of the application on cause but the disposition is silent on costs beyond ordering security for costs of Ksh. 200,000/= to be deposited in court

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.

Accordingly, the applicant is hereby compelled to deposit in court a sum of Ksh. 200,000/= as security for costs and simultaneously file the record of appeal within 45 days from the date of this ruling, failing which the stay of execution order will lapse automatically.
p. 5Final orders - conditional stay of execution
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
p. 5Meaning of substantial loss (Kenya Shell Ltd v Kibiru, quoted)
The word 'substantial' cannot mean ordinary loss to which every judgment debtor is necessarily subjected to when he loses his case and is deprived his property as a consequence.
p. 5Substantial loss distinguished from ordinary loss (Century Trading Limited v Kenya Shell Limited, quoted)
with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.
p. 5Overriding objective and substantive justice in stay applications (John Gachanja Mundia, quoted)
The court also finds that the application was made without unreasonable delay and the same is not contested.
p. 5No unreasonable delay

Issues in the judgment

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material

The delivery date appears to be a typographical anomaly relative to the application and judgment dates in 2025: 'RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS DAY OF 30TH APRIL 2026.'

minor

The judgment refers to the decree with inconsistent dates, once as 21st July 2025 and once as 21/07/2025 versus the applicant's reference to the decree dated 25th July 2025

minor

The judgment is silent on the suit's case number, the court station and the identity/name of the respondent

minor

The coram names counsel for the '1st Defendant/Applicant' although the application is described as brought by a single applicant

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, "Omari (Suing as the Legal Administratix of the Estate of Peter Omari Makworo Deceased) v Wandwi & 2 others (Environment and Land Case E006 of 2022) [2026] KEELC 2753 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2753/eng@2026-04-30

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