Elizabeth Akwii Ongatui v Pauline Akotchi Odero

for orders of specific performance which orders were granted. 3. That she has made a formal application for appeal against the judgment that was delivered on 16 th October 2025 challenging the decision of the trial Court vide Busia ELC APPEAL NO. E026 of 2025. 4. That unless stay of execution orders are granted, the Respondent may proceed with execution against the Appellant to the detriment of the appeal. The Application has been made without unreasonable delay. 5. That this Honourable Court has jurisdiction to issue stay of execution orders and grant the applicant an opportunity to proceed and prosecute the appeal against the decision of the trial Court. 6. The Applicant further filed a further affidavit on 12 th May 2026 and sworn on the even date where she deponed that the claim by the Respondent against her in the lower Court was for an Order of Specific Performance in which the Respondent had sought that she transfer the suit parcel to her. BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 2 of 15

page 2 of 15

7. That the Lower Court, in its judgment dated 16 th October 2025, directed her to transfer a portion measuring 0.17Ha out of LR. NO. SOUTH TESO/ANGOROMO/14969 to the Defendant/Respondent. 8. That if the said judgment is executed, the suit parcel is likely to be transferred to 3rd parties, and such action is likely to render the Appeal nugatory as the suit parcel would be in the hands of 3rd parties. 9. That she is in occupation of the suit parcel and the execution is likely to render her homeless together with her family. 10. That the appeal has a high chance of success as the trial Court erred by ordering specific performance of an illegal contract which disposed of a parcel of land belonging to the deceased without obtaining letters of Administration. 11. She therefore urged the Court to grant the prayer for stay of execution pending the hearing and determination of the appeal to preserve the suit property pending the outcome of the appeal and that she is ready to abide by the orders of this Court regarding stay of execution, including depositing security for costs. BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 3 of 15

page 3 of 15

THE RESPONDENT'S CASE 12. The Respondent opposed the application vide Grounds of Opposition filed and dated 21st February 2026. 13. In the Grounds of Opposition, the Respondent states that the appeal has no merit and that the application does not meet the threshold set down by the law regarding orders of stay. And that the Appellant will suffer no prejudice if the decree is executed, as she does not live on or possess suit land. Terming the application frivolous, vexatious and an abuse of the Court process. Urged the Court to dismiss the application with costs. APPELLANT'S WRITTEN SUBMISSIONS 14. The Appellant submits that the application dated 3 rd November 2025 satisfies the requirements of Order 42 Rule 6 of the Civil Procedure Rules and seeks a stay of execution of the judgment delivered on 16th October 2025 in Busia CMC ELC NO E112 of 2020 pending the hearing and determination of the appeal. 15. The Appellant argues that the trial Court ordered her to transfer 0.17 Ha out of BUSIA ELC APPEAL NO. E026 OF 2026 – RULING L.R. NO. SOUTH Page 4 of 15

page 4 of 15

TESO/ANGOROM/14969 to the Respondent within 15 days, failing which the Court Administrator would execute the transfer documents. She contends that unless execution is stayed, the land will be transferred before the appeal is heard, thereby rendering the appeal nugatory and occasioning unnecessary litigation. 16. It is further submitted that the Appellant has established her home on the suit property and execution of the decree would render her landless, causing substantial loss. The Appellant maintains that the subject matter should therefore be preserved pending determination of the appeal. 17. Relying on Order 42 Rule 6(2) and authorities including Port Florence Community Health Care v Crown Health Care Ltd (2022) eKLR, Niazsons (K) Ltd v China Road & Bridge Corporation (Kenya) (2001) eKLR, and Mutanga Investments Ltd v Safaris Unlimited (Africa) Ltd & Others (2009) eKLR, the Appellant argues that the appeal is arguable, execution would render it nugatory, and the interests of justice favour preservation of the suit BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 5 of 15

page 5 of 15

property. The Appellant accordingly urges the Court to allow the application for stay. RESPONDENT'S WRITTEN SUBMISSIONS 18. The Respondent opposes the application, arguing that it fails to meet the statutory threshold for grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules. 19. The Respondent submits that the Appellant has not demonstrated the substantial loss she stands to suffer if stay is denied and has not shown that execution is imminent. Further, the Appellant has neither offered nor undertaken to furnish security for the due performance of the decree, which is a mandatory prerequisite for grant of stay. 20. The Respondent also contends that the application is procedurally defective because it fails to identify the subordinate Court case number from which the impugned decree emanates and does not annex the decree sought to be stayed. It is argued that failure to annex the decree is a fatal omission that renders the application incompetent. BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 6 of 15

page 6 of 15

21. Additionally, the Respondent submits that although the application refers to orders allegedly issued on 16 th October 2025, those orders were not annexed, leaving the Court without the material necessary to determine whether such orders exist or are capable of being stayed. 22. On those grounds, the Respondent urges the Court to find that the application is frivolous, vexatious, an abuse of the Court process, and lacking in merit, and to dismiss it with costs. ANALYSIS AND DETERMINATION 23. I have carefully considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition and the rival submissions by counsel. The sole issue for determination is whether the Appellants have satisfied the legal threshold for the grant of an order of stay of execution of the judgment, decree, and eviction orders pending the hearing and determination of the appeal. 24. The principles governing the grant of an order of stay of execution pending appeal are well settled under Order 42 BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 7 of 15

page 7 of 15

Rule 6(2) of the Civil Procedure Rules, which provides that no order for stay shall issue unless the Court is satisfied that: the applicant will suffer substantial loss unless the order is made; the application has been made without unreasonable delay; and such security as the Court orders for the due performance of the decree has been furnished. 25. The requirements under Order 42 Rule (6)(2) are not disjunctive but cumulative. Consequently, an applicant must satisfy the Court that he stands to suffer substantial loss unless the order is granted, that the application has been made without unreasonable delay, and that he has furnished such security as the Court may order for the due performance of the decree. 26. In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court observed that: “These conditions are the essence of Order 42 Rule 6 CPR which I need not recite in verbatim. The conditions share an inextricable bond such that the absence of one will affect the exercise of the discretion of the Court in granting stay of BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 8 of 15

page 8 of 15

execution. The Court of Appeal in Mukuma V Abuoga (1988) KLR 645 reinforced this position.” In the present case, the Appellant contends that the judgment of the lower Court dated 16th October 2025, directed her to transfer a portion measuring 0.17 Ha out of L.R NO. SOUTH TESO/ANGOROMO/14969 to the Respondent within 15 days from the date of the judgment. And that, if execution proceeds, the suit parcel is likely to be transferred to 3 rd parties, which action is likely to render the appeal nugatory, as the suit land will be in the hands of the 3 rd parties. 27. The Appellant is also in the occupation and use of the suit land and the imminent execution will render her and her family homeless. This position has been contested by the Respondent in their Grounds of Opposition. However, there is no material evidence to the contrary. 28. The Appellant and her family being rendered homeless is a form of substantial loss that may not be remedied by an award of damages should the appeal ultimately succeed. In the case of James Wangalwa & Anor v Agnes Naliaka [2012] eKLR, the Court stated that: BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 9 of 15

page 9 of 15

“No doubt, in law, the fact that the process of execution has been put in motion or is likely to be put in motion by itself does not amount to substantial loss…the Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as a successful party in the Appeal.” 29. In the case of Kenphy Investment Limited v Hakasa Properties Limited [2026] KEELC 3714 (KLR) the Court held that: “The cornerstone of an application for stay is proof of substantial loss. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court substantial observed that: loss "The is issue of the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 10 of 15

page 10 of 15

status quo because such loss would render the Appeal nugatory” 30. I am therefore satisfied that the threatened eviction and demolition of the Appellants' homes constitute substantial loss within the meaning of Order 42 Rule 6(2). 31. The impugned judgment was delivered on 16 th October 2025, and the present application was lodged on 3 rd November 2025, barely two weeks later. In the circumstances, I find that the application was filed without unreasonable delay. In the case of Kenphy Investment Limited v Hakasa Properties Limited [2026] KEELC 3714 (KLR), the Court held that: “Regarding delay, the ruling sought to be appealed against was delivered on 6th March 2026 while the present application was filed on 30th March 2026. In the circumstances, a period of approximately twenty-four days cannot be said to constitute inordinate delay. I am therefore satisfied that the application was presented without unreasonable delay.” BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 11 of 15

page 11 of 15

32. As regards security, although the Appellants have not proposed a specific form of security, they have expressly expressed willingness to comply with any conditions that the Court may impose regarding stay of execution and depositing security in their Further Affidavit dated 12 th May 2026. The Court retains discretion under Order 42 Rule 6(2)(b) to determine appropriate security, and the absence of a specific proposal is not, in itself, fatal where the applicant demonstrates readiness to abide by the Court's directions. 33. In Arun C. Sharma Vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR, the Court stated that the purpose of security is not to punish a judgment debtor but to guarantee the due performance of any decree that may ultimately be binding upon him. In the interests of balancing the competing rights of the parties, security may therefore be imposed as a condition for the grant of stay. BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 12 of 15

page 12 of 15

34. In Kenphy Investment Limited v Hakasa Properties Limited [2026] KEELC 3714 (KLR) supra, the Court stated that: “Ultimately, the Court is required to balance the Applicant's right of appeal against the Respondent's right to enjoy the fruits of its judgment. In Machira t/a Machira & Co. Advocates Vs East African Standard [2002] KEHC 1167 (KLR), the Court observed that a successful litigant is ordinarily entitled to the fruits of his judgment. However, where an applicant demonstrates sufficient cause, the Court must ensure that the appeal, if successful, is not rendered nugatory. Having weighed competing interests in matter, this the I am persuaded that the interests of justice favour preservation of the subject matter pending the hearing and determination of the appeal.” BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 13 of 15

page 13 of 15

35. Taking into account the competing interests of the parties, I am persuaded that preserving the status quo pending the determination of the appeal best serves the interests of justice. If execution proceeds and the Appellant is rendered homeless together with her before the appeal is heard, any eventual success on appeal may be rendered merely an academic exercise. DISPOSITION AND FINAL ORDERS 36. In the result, I am satisfied that the Appellants have met the threshold for the grant of an order of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules. It is in the interests of justice that the subject matter of the appeal be preserved pending its hearing and determination so as not to render the appeal nugatory. Accordingly, I make the following orders: a) An order of stay of execution of the judgment dated 16th October 2025 and all consequential decrees/orders hereby granted issued pursuant pending the thereto hearing and determination of the appeal. BUSIA ELC APPEAL NO. E026 OF 2026 – RULING is Page 14 of 15

page 14 of 15

b) Costs of this application shall abide by the outcome of the appeal. 37. It is so ordered. Ruling dated, signed and delivered in open Court on this 24th day of September 2026. C. MUGAMBI JUDGE 24TH SEPTEMBER 2026 BUSIA ELC APPEAL NO. E026 OF 2026 – RULING Page 15 of 15

page 15 of 15