IN THE COURT OF APPEAL AT KAKAMEGA [CORAM: NYAMWEYA, ALI-ARONI & NGETICH, JJ.A.] CIVIL APPEAL (APPLICATION) NO. E046 OF 2026 BETWEEN JAMES WESONGA NAFWA..............APPLICANT/APPELLANT AND JANEPHER MAROTI BARASA.........................RESPONDENT (Being an application for stay of execution pending an appeal therefrom of the decree of the Environment and Land Court at Busia (Olao J.) delivered on 26th February 2026 in ELC Case No. 56 of 2017) ************* RULING OF THE COURT 1. The applicant, James Wesonga Nafwa, has approached this Court through a Notice of Motion dated 28th June 2026, in which he seeks an order for a stay of execution of the decree of the Environment and Land Court (ELC) at Busia (Olao, J.) delivered on 26th February 2026 in ELC Case No. 56 of 2017. The applicant also seeks an order of injunction restraining the respondent, Janepher Maroti Barasa, from evicting him from the suit land or disposing of it pending the hearing and determination of this appeal. 2. The application is supported by the applicant's further affidavit sworn on 28th June 2026. The applicant confirms that he has already filed a Memorandum of Appeal dated 30th March 2026, marked as JWN4. He deposes that he and Page 1 of
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his late father, Nafwa Muyubi, have been in continuous and uninterrupted occupation of the suit land Page 2 of
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since the 1950s. He contends that although the land was awarded to the respondent's husband, Vesto Were, by the Land Adjudication Committee in 1966, the husband never took physical possession. 3. The applicant argues that the trial Judge erred by miscalculating the time from when adverse possession accrued. He avers that by the time the respondent's husband attempted to sell the land in 1988, the statutory period for recovery of the land had expired. He further argues that when the respondent was registered as the owner in 2016, she took the title subject to the responsibilities and liabilities held by her predecessor in title. He fears that the respondent, who has already secured a potential buyer, will evict him and dispose of the land, thereby rendering the intended appeal nugatory. 4. The application is opposed by the respondent through her replying affidavit sworn on 22nd June 2026. The respondent contests the applicant's claim of occupation of the suit land. She asserts that the suit land is Parcel No. 949, which is registered in her name. Crucially, she states that the applicant does not occupy Parcel No. 949; rather, the applicant resides on Parcel No. 948, which borders the suit land. Page 3 of
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5. The respondent contends that the applicant has failed to prove his physical occupation of the specific parcel of land registered in her name, thereby disentitling him to the equitable reliefs sought. Page 4 of
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6. We have carefully considered the application, the supporting affidavits, the replying affidavit, and the Memorandum of Appeal. The jurisdiction of this Court in an application of this nature is conferred by Rule 5(2)(b) of the Court of Appeal Rules. The principles governing the grant of a stay of execution pending appeal are now well settled. As was held in Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR and Githunguri v Jimba Credit Finance Corp Ltd [1988] eKLR, an applicant must demonstrate two core principles: first, that the intended appeal is arguable, not frivolous; and second, that if stay is not granted, the appeal, if successful, would be rendered nugatory. 7. On the first limb, we have perused the Memorandum of Appeal. The applicant raises arguable issues regarding the calculation of time for adverse possession under the Limitation of Actions Act (Cap 22) and whether the respondent took title in 2016 subject to the applicant's overriding interests. An arguable appeal is one that is not frivolous, and we are satisfied that the applicant has satisfied this threshold. 8. In respect of the second limb of the nugatory aspect, the applicant contends that he faces the threat of eviction and alienation of the suit land. However, the respondent has Page 5 of
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introduced a fundamental factual Page 6 of
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dispute by asserting that the applicant is not on Parcel No. 949, the suit land registered in her name, but rather on Parcel No. 948. 9. It is a cardinal principle that an applicant for stay of execution must demonstrate to the Court the specific substantial loss they stand to suffer. In National Industrial Credit Bank (K) Ltd v Kiprop Kiprotich [2005] eKLR, this Court held that an applicant must establish specific facts and evidence of substantial loss, as the issue of stay cannot be left to mere conjecture. 10. In the present case, the identity of the occupied land is fiercely contested, with the respondent maintaining that the applicant resides in Parcel No. 948 and not in Parcel No. 949. Without definitive proof that the applicant is in occupation of Parcel No. 949, the Court cannot ascertain whether the execution of the ELC decree will directly result in his eviction from the specific suit land. 11. Consequently, the applicant has failed to demonstrate that the execution of the decree will occasion him substantial loss such as to render the intended appeal nugatory. In Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd [2002] eKLR, the Court held that an appellant must furnish concrete Page 7 of
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evidence of the likelihood of substantial loss, a standard the applicant herein has not met. Page 8 of
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12. In light of the foregoing, we find that the applicant has failed to meet the threshold for the grant of stay of execution and an injunction pending appeal. The Notice of Motion dated 28th June 2026 is hereby dismissed with costs to the respondent. 13. Orders accordingly. Dated and delivered at Kakamega this 25th day of September, 2026. P. NYAMWEYA ………………………… JUDGE OF APPEAL ALI-ARONI ………………………… JUDGE OF APPEAL R. NGETICH …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Page 9 of
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