Opere v Nyakwama & another (Environment and Land Appeal E023 of 2024) [2026] KEELC 5366 (KLR)

Applicant's Case 4. The Motion was premised on the grounds on its face and on the depositions in the Supporting Afidavit of the Applicant, Reggy Opiyo Opere, sworn on 19th June, 2026. The grounds of the Motion were that he had not been heard and did not defend himself in court since the suit began in the year 2018. Further, that this court dismissed his appeal with costs on 8th June, 2026. That suficient cause existed in that the intended appeal was arguable and may succeed. 5. In his Supporting Afidavit, the Applicant deponed that he was the registered proprietor of Land Parcel No. Suna East/wasweta I/11544, having obtained his title deed on 12th October, 2016 from the Land Registrar, Migori. He deponed further that following delivery of the judgment the 1st Respondent was desirous of executing the same. That thereby rendered his building materials of no use. He added that he was hypertensive, of advanced age and approaching his eighties, and that he required peace of mind. 6. He deponed further that this court did not address all the issues placed before it. Further, that the Appeal raised pertinent, plausible and arguable issues deserving of ventilation before the Court of Appeal. He deponed further that the Notice of Appeal had been lodged and served as required by law and that unless stay was granted the intended appeal may be rendered nugatory. He deponed that he was ready and willing to ofier such reasonable security as the court may determine. Further, that the Application had been brought timeously and in good faith. 1st Respondent's Case 7. The 1st Respondent opposed the Application through his Replying Afidavit sworn on 7th July, 2026 and filed on the same date. He deponed that the Application was a non-starter, frivolous, vexatious and an abuse of the process of the court. That it was bad in law and incurably defective. That it was calculated only to stop him from realising the fruits of a judgment delivered in his favour. 8. He denied the assertion that the Applicant was never accorded an opportunity to be heard since 2018. His account was that the Applicant lodged a suit in the subordinate court, failed to prosecute it. Instead he stormed out of court at the hearing. That in an attempt to salvage his case he lodged the appeal which this court dismissed with costs. 9. On the law, the 1st respondent pleaded that the Applicant had failed to establish the prerequisites for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. He contended that the burden lay on the Applicant to prove the substantial loss he would sufier. Further, that mere apprehension that execution may commence does not, without more, amount to substantial loss. He deponed further that the existence of strong grounds of appeal does not by itself justify a stay of execution. Also, that the Applicant had been silent on the question of security, an ofier of which must come from the Applicant and ought not to be inferred or left to the court lest the court step into the arena of dispute. He deponed further that the Applicant had not demonstrated that the intended appeal would be rendered nugatory. He prayed that the Application be dismissed with costs. 10. The 2nd respondent did not file any response to the Application. 11. At the hearing, learned counsel for the Applicant informed the court that the parties had engaged one another with a view to disposing of the Application by consent but had failed to agree. She indicated that a deposit of Kshs. 100,000/= had been proposed on their part while a figure of Kshs. 200,000/ = was put forward on the other by the Respondent. Further, that since they could not reach an agreement, the Applicant was content to leave the question of security to the determination of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5366/eng@2026-08-12 2

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court. Counsel for the Respondents likewise confirmed that the figure of Kshs. 100,000/= had been insisted upon as security by the Applicant and equally left the matter to the court to decide. 12. The Application was to be canvassed by way of written submissions. None were filed by either party. That does not of itself prejudice the determination of this application on merits since submissions are only a marketing language parties employ to sway the court to agreeing to their side of argument or point of view. This was stated in Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment) where the Court of Appeal held as follows: “ Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 13. That being so, I have considered the motion, the Supporting Afidavit and its annexure, the replying afidavit, the oral positions taken by counsel, the record of the court and the applicable law. Issues For Determination 14. In my view the following issues arise for determination: a. Whether the judgment and decree of 8th June, 2026 is capable of being stayed; b. If so, whether the applicant has satisfied the conditions prescribed by Order 42 Rule 6(2) of the Civil Procedure Rules; c. What orders should issue, and who should bear the costs. Analysis And Determination 15. This court sets to determina the issues before above in sequence. a. Whether the judgment and decree of 8th June, 2026 is capable of being stayed 16. Before turning to the conditions for the grant of stay it is necessary to ask a logically anterior question, namely, what precisely is it (or what substance is it) that the Applicant asks this court to stay? This is a critical question because of the subject or substance does not exist, then the prayers sought must be misconceived or incompetent hence incapable of being granted. The jurisdiction to stay execution presupposes the existence of a decree or order capable of execution. Where there is nothing capable of execution, there is then nothing to stay execution of, and the court would be engaged in an academic exercise. 17. The judgment of 8th June, 2026 dismissed the Appeal with costs to the Respondents. By that judgment this court did not order any party to do anything, or to refrain from doing anything, or to pay any sum, save for costs. Payment of costs is basically a post judgment lawful process. Unless the appeal is in respect of the costs themselves, then a prayer for stay of execution is, so to say, based on a hollow prism or vacuum. A dismissal of a suit, claim, matter or application is, in the settled language of our jurisprudence, a negative order. 18. In Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR), the Court of Appeal for East Africa posed the very question that arises here, observing that where the superior court has merely dismissed a suit with costs there is nothing arising out of that decree that is capable of execution, save in respect of costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5366/eng@2026-08-12 3

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19. That reasoning was afirmed by the Court of Appeal in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] KECA 346 (KLR), where the court, dealing with an order which had merely dismissed an application with costs, held that since the court below had not ordered any of the parties to do anything, to refrain from doing anything, or to pay any sum, the order was a negative one and was incapable of execution save in respect of costs only. The same position was taken by Makhandia J. (as he then was) in Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No. 15 of 2010. This was still the position taken more recently by the Court of Appeal in Kabuthia & 10 others v Karanja [2024] KECA 155 (KLR), where it was observed that a refusal simply leaves the Applicant in the position he occupied before he came to court, and that there being no positive order capable of execution, there can be no stay of such an order. 20. Applying those principles to this matter, the dismissal of the appeal restored nothing to the Respondents that they did not already hold. Also, it conferred upon them no new entitlement enforceable against the Applicant beyond costs. Whatever positive relief may exist in favour of the Respondents, if any, is to be found in the decree of the subordinate court and not in the judgment of this court. It is the judgment of this court alone which the Notice of Appeal dated 9th June, 2026 challenges and which prayer 3 of the Notice of Motion seeks to stay execution of. 21. I would add this. The Applicant has not placed before this Court either the decree of this court or the decree of the subordinate court. The only annexure to the Supporting Afidavit, marked “ROO1”, is a copy of the Notice of Appeal. In the absence of the decree the court is left to speculate as to what it is that is said to be under threat of execution. A party who invites the court to stay execution bears the elementary burden of showing the court what is to be executed. The deposition that execution would render the Applicant's “building materials of no use” is not tied to any order of this or any other court, and no particulars whatsoever have been furnished of those materials, their location, their value or the process by which they are said to be imperilled. 22. On this ground alone the Application must fail. Save in respect of costs, there is simply nothing arising from the judgment of 8th June, 2026 that is capable of execution. Therefore, there is nothing that this court can stay execution of. b. Whether the conditions under Order 42 Rule 6(2) have been satisfied 23. Lest it be misinterpreted that by the finding above the matter has been disposed of on a narrow point hence the applicant driven out of the seat of justice prematurely, I have taken the liberty to consider the instant Application on its merits on the applicant’s (misapprehension of premises in the Applicant's favour) that there exists a decree capable of execution. 24. Order 42 Rule 6(2) of the Civil Procedure Rules provides that no order for stay of execution shall be made under subrule (1) unless the court is satisfied that substantial loss may result to the Applicant unless the order is made, that the application has been made without unreasonable delay and that such security as the court orders for the due performance of the decree or order as may ultimately be binding on the Applicant has been given by the Applicant. The provision gives three conditions for grant of the orders. These three conditions are conjunctive. As was held in James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), they share an inextricable bond, such that the absence of one afiects the exercise of the court's discretion to grant a stay. 25. On substantial loss, the Applicant's case rises no higher than the averment that the 1st Respondent is desirous of executing the judgment. That is an apprehension, not a loss. In Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR) the Court of Appeal described substantial loss as the cornerstone of the jurisdiction to grant stay. It is that loss which must be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5366/eng@2026-08-12 4

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prevented. In James Wangalwa (supra) the court put the matter beyond argument, holding that the fact that the process of execution has been put in motion, or is likely to be put in motion, does not by itself amount to substantial loss, execution being a lawful process and that an Applicant must establish other factors demonstrating that execution will create a state of afiairs that will irreparably afiect or negate the very essential core of the Applicant as the successful party in the appeal. 26. Measured against that standard, the Applicant has placed no material before me to demonstrate loss. He has not shown what is to be lost, its value, or why any such loss would be irreparable or incapable of being compensated in damages. A bare and not particularized reference to building materials, unsupported by a single document, does not discharge the burden. Substantial loss is a matter to be proved, not merely asserted. 27. The Applicant's reliance on the strength of his intended appeal does not advance his case either. Whether the intended appeal is arguable, and whether it would be rendered nugatory, are the twin considerations governing the discretion of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal (Organization and Administration) Rules. They are not the test prescribed by Order 42 Rule 6(2) for this court. It is trite that at every appellate level an arguable appeal alone has never been suficient. The Applicant's complaint that this court did not address all the issues before it is properly understood, a ground of appeal for the Court of Appeal to consider and it is not for this court to sit on the merits of its own judgment. 28. I have not overlooked the Applicant's deposition that he is hypertensive, of advanced years and approaching his eighties. The court is not unsympathetic to those circumstances and they are matters properly urged before any court. But sympathy is not a substitute for proof a fact to the required standard, and advanced age does not, without more, constitute the substantial loss contemplated by Order 42 Rule 6(2). The rule speaks to the consequences of execution, not to the personal circumstances of the judgment debtor. 29. On the second condition, the Applicant fares better than the previous one. She was timeous. Judgment was delivered on 8th June, 2026 and the Motion was drawn and dated on 19th June, 2026, eleven days later. There has been no unreasonable delay, and I so find. But is that enough? I think not. It only goes to mitigate other conditions to be proved. 30. As to security, the Applicant deponed that he was ready and willing to ofier such reasonable security as this court may determine. The 1st Respondent's argument that an ofier of security must be made by the Applicant and ought not to be inferred, lest the court step into the arena of the dispute, is well taken as a general proposition. It does, however, lose much of its force in this case, where the parties themselves engaged on the quantum of security, one side proposing Kshs. 100,000/= and the other Kshs. 200,000/= and where both counsels expressly left the figure to the determination of this court. Had the Applicant surmounted the first hurdle, the fixing of security would have presented no dificulty. The purpose of security is to guarantee the due performance of such decree (that is stayed on that account) as may ultimately be binding on the Applicant and not to punish him or to fetter his right of appeal as was observed in Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] KEHC 1412 (KLR) 31. That, however, does not save the Application. The willingness to furnish security cannot cure the failure to establish substantial loss, and the existence of a decree capable of execution. As stated, the conditions to be fulfilled being conjunctive, the failure on the one first is fatal to the application. 32. Costs follow the event under Section 27 of the Civil Procedure Act. The 1st Respondent has sought costs of the application. I bear in mind, however, that no submissions were filed by either side, that the parties made a genuine attempt to compromise the Application and came very close to doing so and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5366/eng@2026-08-12 5

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that the Applicant is an elderly litigant. In those circumstances, and in the exercise of the discretion vested in the court, I consider it just that each party bears its own costs of the application. 33. Finally, and for the avoidance of doubt, nothing in this ruling precludes the Applicant from moving the Court of Appeal for such relief as he may be advised under Rule 5(2)(b) of the Court of Appeal Rules, 2022, that court having its own distinct jurisdiction in the matter. Equally, execution in respect of the costs decreed by this court can only issue upon taxation and the issuance of a certificate of costs, and upon suficient reasons being presented to the court in a formal application. 34. The upshot of the foregoing is that the Notice of Motion dated 19th June, 2026 is devoid of merit. Itis hereby dismissed. a. Each party shall bear its own costs of the application. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 12TH DAY OF AUGUST, 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of: Mr. E. Awino Advocate for the Appellant/Applicant Mr. Owino Advocate for the Respondents Court Assistant: Arthur https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5366/eng@2026-08-12 6

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