Fanuel Akhayalu Kabole v Geofrey Ondong'a Ongori
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution of the judgment delivered on 16/4/2026 pending appeal is merited
Key legal issues
#Whether the applicant demonstrated substantial loss
Applicant's claim of eviction/execution without evidence of uncompensable loss did not establish substantial loss, but stay was still granted on conditions
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.
Whether security was a prerequisite
Silence on security was not fatal; the court invoked its discretion and imposed its own security condition
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.
Whether delay disentitled the applicant
Delay was raised but the court found special circumstances persuaded it to allow the application on conditions
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.
Legal principles established
#- 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
#- 1.Stay of execution of the judgment delivered on 16/4/2026 granted subject to conditions
- 2.Applicant to deposit Kshs. 200,000/= as security for costs within 30 days, failing which the stay orders shall lapse
- 3.Security to be deposited into a joint account of the two advocates acting for the parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- null
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)
Relief refused
#Unconditional stay of execution
Stay granted only on condition of security deposit; failure to deposit within 30 days causes stay to lapse
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
#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.
I am persuaded to allow the application but not without a condition.
execution is a lawful process and does not amount to substantial loss. An order of stay seeks to preserve what is imminent and apparent.
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.
Issues in the judgment
#Case title heading misspells party name 'GEOFREY' versus body
Paragraph 21 contains garbled text ('I have considered the application sole issue for my determination')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.