Tokali & 9 others v Komis & another

4. The application is opposed by the Respondents through the replying adavit of Anastacia Wamuyu Thiongo, the 2nd Defendant/Respondent and donee of a power of attorney from the 1st Defendant/ Respondent. The Respondents contend that the Applicants have not satised any of the conditions prescribed under Order 42 Rule 6 of the Civil Procedure Rules. In particular, they dispute the assertion that the Applicants have demonstrated substantial loss, terming the alleged loss speculative, general and unsupported by cogent evidence. They further contend that the application was led approximately two months after delivery of the judgment and without any satisfactory explanation for the delay. The Respondents also maintain that the Applicants have neither demonstrated willingness nor ability to furnish security for the due performance of the decree. 5. The Respondents additionally contend that the judgment expressly granted the Applicants ninety days within which to vacate the suit properties and that the said period had not, at the time of the application, expired. They assert that granting a stay would occasion prejudice to them as the registered proprietors of Kili/Kijipwa/372, 373 and 374, by depriving them of quiet possession, use and enjoyment of their property and eectively perpetuating what the judgment had found to be unlawful occupation. The Respondents further rely upon the ndings made in the judgment concerning interruptions to the Applicants' alleged possession, including the demand letter dated 12th April 2010, previous attempts at eviction and the subdivision, survey and sale of the original parcel. 6. I have considered the application, the supporting adavit, the replying adavit, the submissions by the respective parties and the judgment sought to be stayed. The sole issue for determination is whether the Applicants have satised the threshold for the grant of stay pending appeal. 7. The jurisdiction to grant a stay pending appeal is circumscribed by Order 42 Rule 6 of the Civil Procedure Rules. The rule expressly provides that an appeal does not, of itself, operate as a stay of execution or proceedings under the decree or order appealed from. The court appealed from nevertheless possesses jurisdiction, for sucient cause, to order a stay, subject to the statutory conditions prescribed therein. 8. Order 42 Rule 6(2) is particularly material. It provides that no order for stay of execution shall be made unless the court is satised 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 has been given by the applicant. The provision therefore establishes three cumulative considerations: i. Whether the application has been brought timeously; ii. Whether substantial loss has been demonstrated; and iii. Whether security has been oered for the due performance of the decree. 9. There is no controversy that the Applicants have taken the procedural step necessary for purposes of Order 42 Rule 6(4). The record discloses that a Notice of Appeal dated 3rd February 2026 was lodged. For purposes of the rule, an appeal to the Court of Appeal is deemed to have been led when, under the Rules of that Court, a Notice of Appeal has been given. That requirement has therefore been satised. 10. I turn rst to the question whether the application was made without unreasonable delay. The judgment was delivered on 28th January 2026 while the present application was led on 26th March 2026. The intervening period is approximately two months. In the circumstances of this matter, a period of approximately two months cannot, without more, be characterized as inordinate or unreasonable. The Applicants had, in the meantime, lodged their Notice of Appeal and taken steps https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6158/eng@2026-10-05 2

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towards obtaining the certied judgment, decree and proceedings. I am therefore satised that the application was brought without unreasonable delay. 11. The next and more substantial question is whether the Applicants have demonstrated that they stand to suer substantial loss if stay is declined. The principle governing substantial loss is well settled in the authority of Rhoda Mukuma v John Abuoga [1988] eKLR, where the court stated: “ Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case, substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory…” 12. The signicance of substantial loss is thus not to be understated. It is the central consideration upon which the court's jurisdiction to preserve the subject matter pending appeal is engaged. At the same time, the mere fact that a successful litigant will execute a decree does not, by itself, constitute substantial loss. As stated in Century Oil Trading Company Ltd v Kenya Shell Limited, as cited in Muri Mwaniki & Wamiti Advocates v Wings Engineering Services Limited [2020] eKLR, substantial loss does not refer to the ordinary consequences of execution, but to something additional and distinct. 13. The present case possesses a material distinction. The decree arising from the counterclaim is not a decree for payment of a quantied monetary sum. The counterclaim sought, inter alia, the eviction of the Applicants from the suit properties, and the judgment directed the Applicants to remove themselves from the properties within the stipulated period, failing which they would be forcibly evicted. The execution contemplated by the decree is therefore essentially coercive and possessory in character. 14. The Applicants have asserted, and the judgment itself recognizes, that they are in occupation of the suit properties. Indeed, having dismissed the claim for adverse possession, the court proceeded to nd that the Applicants were in occupation and, on that basis, allowed the counterclaim for their eviction. The judgment records, in express terms, that the Applicants were in occupation of the suit land and, having failed in their adverse possession claim, remained trespassers liable to eviction. 15. In Werimo (Suing as the legal representative of the Estate of Welimo Otswila) v Okwomi & 6 others [2026] KEELC 2600 (KLR), the court observed that; “ 19. ………Be that as it may, the subject matter of the appeal being land, I am convinced that if stay of execution is not granted pending appeal, the respondents may deal with the suit property in a manner prejudicial to the applicant’s interest in it thereby occasioning her substantial loss or otherwise loss incapable of being compensated through award of damages. 20. In balancing the rights of the parties, the applicant’s right of appeal and the respondents’ right to enjoy the fruits of their judgment, I am of the considered view that the scales of justice tilt in favour of preserving the status quo which obtained at the time of delivery of the impugned judgment. That status can only be maintained or preserved by way of staying execution of the judgment and/or decree appealed from pending the hearing and determination of the appeal.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6158/eng@2026-10-05 3

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12. It follows that the consequence of declining a stay would not merely be the ordinary implementation of a monetary decree. It would be the removal of the Applicants from the land upon which they presently reside and the consequent displacement of the factual substratum upon which their intended appeal is founded. The Applicants have also placed before the court their contention that they have constructed homes and established their lives upon the suit properties. The record of the substantive proceedings conrms that evidence was led regarding houses and other developments on the land. 13. The Respondents urge that these assertions are speculative and that the Applicants have not demonstrated substantial loss with sucient particularity. That contention would carry considerable force where the decree were merely monetary or where the alleged prejudice consisted only of the ordinary consequences of execution. The circumstances here are dierent. The immediate eect of execution would be eviction from land presently occupied by the Applicants and their families. Once eviction takes place, the prevailing possession would be materially altered before the appellate court has an opportunity to pronounce itself upon the propriety of the judgment. In the circumstances, the risk is not merely theoretical. 14. I am therefore satised that the Applicants have established the requisite element of substantial loss. The threatened eviction and dispossession constitute circumstances beyond the ordinary consequences of execution and are suciently consequential to place the intended appeal at risk of being rendered nugatory. This nding is conned to the question of preservation of the subject matter pending appeal and does not, in any manner, constitute a reconsideration of the merits of the judgment or a pronouncement on the prospects of the intended appeal. 15. I now turn to the requirement of security. Security is not an ornamental requirement but a substantive safeguard intended to balance the right of a successful litigant to enjoy the fruits of judgment against the right of an aggrieved party to pursue an appeal without the subject matter being irreversibly altered in the interim. Order 42 Rule 6(2)(b) expressly requires that such security as the court orders for the due performance of the decree ultimately binding upon the applicant be given. 16. In the present matter, the counterclaim did not result in an order for payment of a specied monetary amount. Its operative relief was directed principally towards possession of the suit properties and the eviction of the Applicants therefrom. The absence of a monetary component does not, however, dispense with the requirement for security. The court retains a discretion to fashion an appropriate form of security commensurate with the circumstances of the case and the nature of the decree. 17. In balancing the competing interests, I consider it just that the preservation of the present position be conditioned upon the Applicants furnishing security for costs in the sum of Kshs. 500,000. Such security strikes an appropriate balance between preserving the subject matter of the intended appeal and safeguarding the Respondents against the consequences of the continued litigation. 18. The nal consideration is the form of the order to issue. The circumstances of this case make a conventional stay of execution necessary to preserve the subject matter pending the appellate process. Since the decree is principally concerned with eviction and recovery of possession, the appropriate order is one preserving the status quo obtaining on the suit properties as at the date of this ruling. Such an order neither confers proprietary rights upon the Applicants nor reverses the judgment. It merely prevents the physical alteration of the subject matter before the intended appeal is heard and determined. 19. In the result, the application succeeds, subject to terms. Accordingly, I make the following orders: a. There shall be an order staying execution of the judgment and decree delivered on 28th January 2026 pending the hearing and determination of the intended appeal to the Court of Appeal; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6158/eng@2026-10-05 4

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b. The status quo prevailing over the suit properties known as Kili/Kijipwa/372, Kili/ Kijipwa/373 and Kili/Kijipwa/374 shall be maintained pending the hearing and determination of the intended appeal; c. The Applicants shall deposit in court security for costs in the sum of Kshs. 500,000 within thirty (30) days from the date of delivery of this ruling; d. In default of compliance with order (c) within the stipulated period, the stay granted and the order of status quo issued herein shall both automatically lapse and the application shall, without further order, stand dismissed with costs upon expiry of the thirty (30) days; e. The costs of the application shall abide the outcome of the intended appeal. DATED, SIGNED, AND DELIVERED AT MALINDI ON THIS 5TH DAY OF OCTOBER 2026 HON JUSTICE MWANGI NJOROGE JUDGE ENVIRONMENT AND LAND COURT, MALINDI In the presence of : Mr Opulu instructed by Opulu & Company Advocates, for the plaintis Mr Amakobe instructed by Munyao Muthama & Kashindi Advocates, for the defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6158/eng@2026-10-05 5

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