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ELCAllowedNotice of Motion dated 10th April 2026 (appeal against Kakamega Chief Magistrates Court ELC Case Number E004 of 2021)

Mukofu v Akhanala (Environment and Land Appeal E029 of 2026) [2026] KEELC 4173 (KLR)

Environment and Land Court
1 July 2026
ANA. Nyukuri
994 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 halted execution of a land-and-burial judgment for six months, confirming that mere fear of execution is not enough to win a stay.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 10th April 2026 in which the appellant sought stay of execution of a judgment delivered on 2nd April 2026 in Kakamega Chief Magistrates Court ELC Case Number E004 of 2021, pending hearing and determination of an appeal. The lower court had ordered deregistration of the appellant's name from title to parcel No. Isukha/Mukhonje/1751 and ordered payment of mortuary fees of Kshs. 1,000 per day. The appellant argued he would suffer substantial loss as the Land Registrar might delete his name from the register and the appeal would be rendered nugatory. The respondent opposed, asserting the supporting affidavit contained falsehoods, no payments had been made, the appellant had not met the stay threshold, and security for costs ought to be deposited. The court framed a single issue: whether the applicant met the threshold for stay under Order 42 Rule 6 of the Civil Procedure Rules. Citing James Wangalwa and Tropical Commodities Suppliers, it held that impending execution alone is insufficient and that substantial loss is a qualitative concept. Satisfied the appeal raised triable issues, and taking judicial notice of the importance communities attach to burial sites, the court found dismissal would have serious ramifications on burial rites since the deceased's body remained at a morgue. It granted stay of execution for six months. No costs order was made.

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

Threshold for stay of execution pending appeal

Holding

The applicant demonstrated substantial loss given the burial-related ramifications and triable issues, warranting stay limited to six months.

Reasoning

Applying Order 42 Rule 6, the court considered the three requirements: substantial loss, application without unreasonable delay, and security. Citing Tropical Commodities, substantial loss is qualitative. Given the deceased's body remained preserved at a morgue and the case, though framed as a land claim, concerned burial, dismissal would have serious ramifications on burial rites, persuading the court to grant stay, time-limited to six months.

p. 6

Legal principles established

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  • Impending execution alone cannot be the basis for grant of stay of execution pending appeal; the applicant must demonstrate substantial loss, absence of unreasonable delay, and willingness to provide security.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 2nd April 2026 in Kakamega CMC ELC Case No. E004 of 2021 for a period of six months

The bench

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

AN
majority

Wrote the judgment

On appeal from
Kakamega Chief Magistrates Court (ELC)
E004 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, on appeal from the Chief Magistrates 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.

In the premises, I grant stay of execution of the Judgment delivered on 2nd April 2026 in Kakamega CMC ELC CASE NO. E004 OF 2021, for a period of six months.
p. 6final orders - stay granted
Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept.
p. 5meaning of substantial loss

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, "Mukofu v Akhanala (Environment and Land Appeal E029 of 2026) [2026] KEELC 4173 (KLR)", Case Analysis (2026). Notice of Motion dated 10th April 2026 (appeal against Kakamega Chief Magistrates Court ELC Case Number E004 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4173/eng@2026-07-01

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