Brant & others v Kaingu & others (Environment and Land Case 222 of 2019) [2026] KEELC 4463 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused to pause execution of a land judgment because the applicants waited over three months, showed no real evidence of loss, and offered no security.
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 applicants will suffer substantial loss if stay of execution is not granted
- 2.Whether the application for stay of execution was made without unreasonable delay
- 3.Whether the applicants have offered or are willing to furnish security for due performance of the decree
Key legal issues
#Whether substantial loss had been demonstrated
The applicants failed the substantial loss test; mere assertion of loss was insufficient and no evidence of substance was adduced
The court applied James Wangalwa & Another v Agnes Naliaka Cheseto, holding that execution is a lawful process and the applicant must establish factors showing execution will irreparably affect or negate the essential core of the applicant as the successful party in the appeal. Other than stating they would suffer substantial loss because their homes and family dwellings would be demolished, no evidence of substance was adduced. The claim of sentimental, cultural and matrimonial value of the land was unsupported by evidence meeting this threshold.
Whether the application was made without unreasonable delay
The application was made more than three months after judgment with no explanation for the delay
Judgment was delivered on 25 June 2025, while the applicants' own documents suggested the application was filed in October 2025. The respondent argued there was no urgency. The court found the delay of more than three months unexplained, failing the second requirement of Order 42 Rule 6.
Whether the applicants offered security for due performance of the decree
The application was silent about security, which the respondent submitted was fatal
Order 42 Rule 6 requires the applicant to furnish such security as the court orders for due performance of the decree. The respondent pointed out the application said nothing about security, relying on authorities that security guarantees due performance of the decree rather than punishing the judgment debtor. The court's disposition rested on failure of the first two tests, but the security omission reinforced dismissal.
Legal principles established
#- An applicant for stay of execution must establish substantial loss, that the application was made without unreasonable delay, and furnish security for due performance of the decree
- Execution being commenced or likely to be commenced does not by itself amount to substantial loss
Court orders
#- 1.The application for stay of execution pending appeal is dismissed
- 2.Costs of the application awarded 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(1) and (2) of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the judgment in ELC No. 222 of 2019 (Kibunja J, 25 June 2025) and any resultant order and decree pending the intended appeal
The applicants failed the first condition for stay: the application was filed more than three months after judgment with no explanation for the delay, and no evidence of substance was adduced to demonstrate substantial loss
Costs of the application
The application was dismissed with costs to the respondent
Costs
The application is dismissed with costs to the respondent/plaintiff.
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.
It is the courts view that the applicant has failed the first test for grant of stay of execution pending appeal. The application is made more than 3 months after judgment and no explanation is made for this delay.
The application is found without basis and is dismissed with costs.
a.That substantial loss may result to the applicant unless the order is made. b.Application has been made without unreasonable delay. c.Security as the court orders for the due performance.
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
Issues in the judgment
#Internal inconsistency in dates: the judgment records delivery of the judgment under appeal as 25 June 2025 but the grounds state 'delivered on 25th of June 225'; the document also carries a signature date of 2026-07-14 while the application is described as filed in October 2025
The respondent's submissions reference a judgment of 'Justice Sila Munyao' and an order for ground survey dated 3.3.2021, while the application describes the judgment under appeal as delivered by 'learned Judge Honourable Stephen Kibunja' on 25 June 2025 - the judgment does not reconcile the two references
Page markers in the filing are irregular and descending (e.g. '8/7', '9/7', '10/7'), suggesting pagination errors in the source document
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Brant & others v Kaingu & others (Environment and Land Case 222 of 2019) [2026] KEELC 4463 (KLR)", Case Analysis (2026). Application in ELC NO. 222 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4463/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.