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Case Brief · caselaw.co.ke
ELRCPartially AllowedELC Appeal No. E011 of 2026

Fanuel Akhayalu Kabole v Geofrey Ondong'a Ongori

Environment and Land Court
25 September 2026
1,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land court paused execution of a judgment, but only because the losing party agreed to deposit Kshs. 200,000 as security within 30 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (G.M. Gitonga, J) on a Notice of Motion dated 4/6/2026 by Fanuel Akhayalu Kabole, the appellant, seeking stay of execution of a judgment delivered on 16/4/2026 in which his suit was dismissed and the respondent's counterclaim allowed, pending appeal. The applicant relied on the respondent's draft decree awaiting signing to commence execution, argued the appeal had high chances of success, that he stood to suffer loss not compensable by damages, and that the respondent would suffer no prejudice. The respondent opposed, contending that eviction under a valid decree is not substantial loss under Order 42 Rule 6 of the Civil Procedure Rules, that there was an unexplained two-month delay, that no security was offered, that the appeal would not be rendered nugatory since land is permanent and possession restorable, and that the balance of convenience favoured enjoying the fruits of judgment. The court framed a single issue: whether the application was merited. It held that substantial loss is the cornerstone of stay and must be proved with cogent evidence, and that execution is a lawful process not amounting to substantial loss (applying James Wangalwa). Silence on security was not fatal since the court could impose it. Applying Samvir Trustee, the court weighed the nugatory-appeal risk against the respondent's enjoyment of the decree. From the totality of circumstances, the court allowed the application on condition: the applicant to deposit Kshs. 200,000/= as security for costs within 30 days into a joint interest account of the parties' advocates, failing which the stay lapses. It is so ordered.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution of the judgment delivered on 16/4/2026 pending appeal is merited

Key legal issues

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01

Whether the applicant demonstrated substantial loss

Holding

Applicant's claim of eviction/execution without evidence of uncompensable loss did not establish substantial loss, but stay was still granted on conditions

Reasoning

The court adopted the settled position that execution of a valid decree is lawful and does not by itself constitute substantial loss. An applicant must show cogent evidence of loss incapable of compensation by damages. The applicant's fear of eviction was unsupported by evidence of financial or other irreparable loss, but the court nevertheless exercised discretion in his favour subject to security.

p. 5
02

Whether security was a prerequisite

Holding

Silence on security was not fatal; the court invoked its discretion and imposed its own security condition

Reasoning

The applicant did not offer security, which the respondent raised as a ground of opposition. The court held that while an applicant has to provide security for the due realization of the decree, the omission is not fatal because the court may impose suitable conditions itself when granting stay.

p. 5
03

Whether delay disentitled the applicant

Holding

Delay was raised but the court found special circumstances persuaded it to allow the application on conditions

Reasoning

The respondent argued a two-month unexplained delay under Order 42 Rule 6(2)(b). The court did not expressly resolve the delay issue in a standalone finding, but from the totality of circumstances found the application deserving, conditioned on a Kshs. 200,000/= security deposit within 30 days.

p. 6

Legal principles established

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  • Execution is a lawful process and does not of itself amount to substantial loss; substantial loss must be demonstrated with cogent and valid evidence
  • The court granting stay must balance the risk of rendering the appeal nugatory against the successful party's enjoyment of the fruits of judgment
  • Failure by an applicant to offer security is not fatal where the court has discretion to impose security on its own motion

Court orders

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  1. 1.Stay of execution of the judgment delivered on 16/4/2026 granted subject to conditions
  2. 2.Applicant to deposit Kshs. 200,000/= as security for costs within 30 days, failing which the stay orders shall lapse
  3. 3.Security to be deposited into a joint account of the two advocates acting for the parties

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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null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Relief refused

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Unconditional stay of execution

Stay granted only on condition of security deposit; failure to deposit within 30 days causes stay to lapse

p. 6

Costs

Costs of the application sought by the applicant; no express costs order appears in the final orders - costs prayed for but not specifically awarded

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.

The applicant shall deposit Kshs. 200,000/= as security for costs within 30 days from the date hereof, failing which the stay orders shall lapse.
p. 6Final orders - conditional stay of execution
I am persuaded to allow the application but not without a condition.
p. 6Disposition
execution is a lawful process and does not amount to substantial loss. An order of stay seeks to preserve what is imminent and apparent.
p. 5Substantial loss
the court has to weigh or balance the scales of justice by ensuring that an appeal is not rendered nugatory, while at the same time, ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment.
p. 6Balancing test for stay

Issues in the judgment

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minor

Case title heading misspells party name 'GEOFREY' versus body

minor

Paragraph 21 contains garbled text ('I have considered the application sole issue for my determination')

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, "Fanuel Akhayalu Kabole v Geofrey Ondong'a Ongori", Case Analysis (2026). ELC Appeal No. E011 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2578/eng@2026-09-25

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