Busienei v Busienei & another (Environment and Land Case 235 of 2014) [2026] KEELC 4457 (KLR)
The bottom line
#An Eldoret court paused execution of a land judgment because the appeal concerns property ownership, ordering the appellant to deposit KShs 1.63 million as security first.
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 Plaintiff has met the legal threshold to warrant a stay of execution of the judgment delivered on 19.09.2023 pending appeal
- 2.Who shall bear the costs of the Application
Key legal issues
#Substantial loss
Substantial loss was demonstrated because the decree was not merely a money decree; it directly affected ownership of the suit property and would sever the Plaintiff's claimed spousal interests irreversibly.
The court examined the 19.09.2023 judgment and found it granted declaratory and specific performance reliefs over the suit property, not just a money decree. Execution would result in transfer and loss of the claimed spousal interest, and such prejudice would not be easily reversible if the appeal succeeded. Substantial loss, being the cornerstone of the jurisdiction for stay, was therefore established.
Unreasonable delay
The delay of about 1 year 5 months was satisfactorily explained by the pendency of proceedings in the Court of Appeal for leave and the filing of the record of appeal.
Though filed long after judgment, the application came after the Plaintiff had sought and obtained leave to appeal out of time and filed and served her record of appeal. The court also held that the competence of the appeal was a matter for the Court of Appeal, not this court, and that until the appeal is struck out there exists an appeal capable of being protected by a stay.
Security
Willingness to provide security suffices; the court fixed security at 10% of the liquidated amount of the decree, i.e. KShs 1,630,000/-, to be deposited within 45 days.
The Plaintiff expressed willingness to comply with conditions but did not propose a form of security. Relying on Focin Motorcycle Co. Limited, the court held that the form of security is a matter for the court's discretion, and an offer of security is a mark of good faith. Security is meant to guarantee due performance of the decree, not to punish the judgment debtor.
Costs
Although the Applicant succeeded and asked for costs to be in the cause, the court directed that costs of the application abide the outcome of the appeal.
The court applied section 27 of the Civil Procedure Act, that costs follow the event unless the court for good reason orders otherwise. Because the suit had already been determined, ordering costs to abide the appeal was considered the appropriate exercise of discretion rather than costs in the cause as sought.
Legal principles established
#- The conditions for stay of execution pending appeal are substantial loss, application made without unreasonable delay, and provision of security as ordered.
- An appeal is deemed filed upon giving of notice of appeal under the Court of Appeal Rules.
- The purpose of security for stay is to guarantee due performance of the decree, not to punish the judgment debtor.
Court orders
#- 1.Stay of execution of the decree issued on 18th September, 2023 together with all consequential orders thereto pending the hearing and determination of the appeal to the Court of Appeal
- 2.Stay granted on condition that the Plaintiff/Applicant deposits Kshs 1,630,000/= as security into an interest earning joint account held by the Advocates for the Plaintiff and 2nd Defendant within forty (45) days of the ruling, failing which the order of stay automatically lapses
- 3.Costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6(1) & (2) of the Civil Procedure Rules - application for stay of execution pending appeal to the Court of Appeal
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.
There shall be a stay of execution of the decree issued on 18th September, 2023 together with all the consequential orders thereto pending the hearing and determination of the appeal to the Court of Appeal.
The stay granted in (a) above is granted on condition that the Plaintiff/Applicant deposits Kshs 1,630,000/= as security for the due performance of the decree into an interest earning joint account to be held by the Advocates for the plaintiff/Applicant and the 2nd Defendant/Respondent within forty (45) days of this ruling, failing which the order of stay shall automatically lapse.
The costs of this application shall abide the outcome of the appeal.
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay.
The reliefs granted in the said judgment, therefore, directly affect the ownership of the suit property, and its execution would result in the severance and/or loss of the spousal interests claimed by the Plaintiff on the land.
Issues in the judgment
#The judgment date is inconsistently stated as 18th September 2023 and 19.09.2023 in the same ruling.
The security deposit period is stated as 'forty (45) days', an internally contradictory number.
The application is dated 19th February, 2026 but the court records it as filed on 24.02.2026.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei v Busienei & another (Environment and Land Case 235 of 2014) [2026] KEELC 4457 (KLR)", Case Analysis (2026). ELC Case No. 235 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4457/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.