Shikanda v Were (Environment and Land Appeal E033 of 2026) [2026] KEELC 5116 (KLR)
The bottom line
#The High Court in Kakamega dismissed a landowner's bid to pause his eviction, holding that facing eviction is not itself a good reason for a stay.
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 appellant has satisfied the conditions for grant of an order of stay of execution pending appeal
Key legal issues
#Whether the appellant satisfied the Order 42 Rule 6 conditions for stay of execution pending appeal
The application failed: the appellant did not demonstrate substantial loss, promptness, security, or an arguable appeal; his adverse possession claim had been struck out for want of jurisdiction and never appealed, and he did not contest the respondent's cross-originating summons.
The court applied the settled tripartite test under Order 42 Rule 6: substantial loss, no unreasonable delay, and security. The applicant relied only on 60 years' residence and imminent eviction, which the court held are not proof of substantial loss since eviction was what the trial court ordered. The striking out of his adverse possession claim, left unappealed, undermined any arguable appeal.
Legal principles established
#- Imminent execution or eviction alone does not constitute substantial loss justifying stay of execution pending appeal.
- Inability to pay the decretal sum is not a basis for granting stay.
- Substantial loss is a qualitative, not mathematical, concept.
Court orders
#- 1.The application dated 8th May 2026 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
- On appeal from
- Mumias Senior Principal Magistrate's Court
- ELC No. E070 of 2024
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Stay of execution of the judgment and decree issued on 10th April 2026 pending appeal
Applicant failed to demonstrate substantial loss, that the application was made without unreasonable delay, an arguable appeal, or willingness to furnish security; mere long residence and imminent eviction do not amount to substantial loss.
Costs
Application dismissed with costs to the respondent
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.
In the premises, I find no merit in the application dated 8th May 2026 which I dismiss with costs to the respondent.
It is so ordered.
Stay pending appeal is not an entitlement of a party. Stay is granted upon exercise of discretion by the court.
Imminent eviction is no proof of substantial loss as that is what the trial court on consideration of pleadings and evidence ordered.
Issues in the judgment
#The judgment contains dates dated in 2026 (application dated 8th May 2026, judgment of 30th July 2026), which appear chronologically anomalous; recorded as printed in the judgment.
The judgment does not state the case number of the appeal before the High Court, only the lower court case number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikanda v Were (Environment and Land Appeal E033 of 2026) [2026] KEELC 5116 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (appeal from Mumias Senior Principal Magistrate's Court ELC No. E070 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5116/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.