Ahmed Abdi Abdullahi v Abdi Nur Abdi

III. Parties’ Cases 7. In his supporting affidavit sworn on 23 January 2026, the Applicant states that he is in actual possession and occupation of the disputed land, where he has incurred substantial capital investments and undertaken developments. He contends that those investments would be destroyed or lost if execution proceeds. 8. The Applicant further states that the land is unique and that disposal to a third party would occasion loss incapable of adequate compensation by damages. He maintains that his appeal raises serious questions of law and fact, and that execution would render it nugatory. 9. In his further affidavit, the Applicant challenges the trial court’s treatment of the evidence concerning his acquisition of the land. He relies on a witness statement, correspondence confirming an alleged transfer, and letters from county officials concerning the dispute. He also denies the Respondent’s allegations of destructive conduct and accuses the Respondent of attempting to evict him forcibly during the subsistence of the interim stay. 10. In his submissions, the Applicant argues that the application was brought promptly, taking into account the intervening Christmas and New Year period. Relying on Mukuma v Abuoga [1988] KLR 645 and Silverstein v Chesoni [2002] 1 KLR 867, he submits that preservation of the property is necessary to prevent substantial loss and protect the subject matter of the appeal. 11. The Respondent disputes the Applicant’s account of occupation and development. He states that the Applicant entered a small portion of the property in 2023 and commenced construction, prompting the proceedings before the trial court. He maintains that the Applicant has not demonstrated substantial loss or offered security for the due performance of the decree. 12. The Respondent also challenges the documents underlying the Applicant’s claim to ownership and alleges that the Applicant destroyed his structures after obtaining interim stay. He asks the Court to dismiss the application with costs. 13. In his submissions, the Respondent relies principally on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, Njogu (Suing on His Behalf and as a Personal Representative of the Estate of Njoki Godfrey) v Nyaga & another [2024] KEELC 13371 (KLR), Richard Daudi Nzyuko & another v Rachael Kailu Nzioka & 2 others [2022] KEELC 402 (KLR), and Samvir Trustee Limited v Guardian Bank Limited. He submits that lawful execution does not, without more, establish substantial loss and that the Respondent’s entitlement to the fruits of judgment must also receive protection. IV. Issue for Determination 14. The issue for determination is whether the Applicant has satisfied the requirements for stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. V. Applicable Legal Principles Page 2 of 6

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15. Order 42 rule 6 of the Civil Procedure Rules governs the application. Under subrule (1), an appeal does not automatically operate as a stay of execution. The Court may grant stay for sufficient cause, subject to the requirements prescribed in subrule (2): demonstration of substantial loss, presentation of the application without unreasonable delay, and provision of such security as the Court orders for the due performance of the decree or order ultimately binding upon the applicant. 16. In Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, the Court of Appeal explained that the superior court’s discretion under the then Order XLI rule 4, the predecessor of Order 42 rule 6, is constrained by the prescribed conditions. An applicant must establish sufficient cause, demonstrate that substantial loss would ensue without stay, and furnish security, while bringing the application without unreasonable delay. Accordingly, an appeal’s existence and prompt presentation of the application do not, by themselves, establish entitlement to stay. 17. Substantial loss must be established through evidence. In Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal emphasized that substantial loss is the cornerstone of the jurisdiction to grant stay. The decision requires the Court to examine whether the consequences of execution have been sufficiently demonstrated to justify withholding the successful party’s enjoyment of the judgment. Although that case concerned a monetary decree, its evidential requirement applies equally to the present application. 18. In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] 2 KLR 63, the Court explained that an applicant must provide specific particulars of the substantial loss alleged. Merely repeating the language of the statutory provision or making general assertions of prejudice is insufficient. The Court also recognized the ordinary entitlement of a successful litigant to the fruits of judgment. Although the application there concerned stay of further proceedings, its reasoning on substantiation of loss and protection of the successful party provides relevant guidance. 19. Security protects the due performance of the decree should the appeal fail. Its nature and amount are matters for judicial determination; an applicant need not invariably deposit security before the application is considered. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR, the Court recognized that an applicant’s expressed readiness to provide security, or a proposal concerning its form, may sufficiently address that aspect of the application, subject to the Court’s discretion. The absence of a prior deposit must therefore be distinguished from a failure to address security altogether. 20. These principles require an assessment of the actual consequences of execution and the protection reasonably due to both parties. The Court must safeguard a deserving appellant against established substantial loss while recognizing that the Respondent’s judgment remains effective unless stayed. Neither the right of appeal nor the successful party’s entitlement should be considered in isolation. VI. Analysis and Determination 21. I have considered the application, the supporting and further affidavits, the replying affidavit, the annexures and the parties’ submissions. The question is whether the Page 3 of 6

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Applicant has established sufficient cause for stay within the requirements of Order 42 rule 6. Whether the application was made without unreasonable delay 22. The judgment was delivered on 17 December 2025, and the application was filed on 23 January 2026, thirty-seven days later. Considering the intervening Christmas and New Year period and the explanation offered, I find that the application was presented without unreasonable delay. 23. That finding satisfies one requirement. As explained in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, however, the discretion to grant stay remains subject to the other prescribed conditions. Promptness cannot substitute for proof of substantial loss or consideration of security. Whether substantial loss has been demonstrated 24. The Applicant’s principal contention is that he occupies the disputed land and has incurred substantial capital investments and undertaken developments which would be destroyed or lost upon execution. The nature and extent of those investments are therefore material to the application. 25. Paragraph 5 of the supporting affidavit does not particularise the investments or developments. It does not identify their value, their use, or the income or livelihood dependent upon them. The Applicant has supplied neither accounts, receipts, photographs nor other supporting material demonstrating the substantial investments alleged. 26. I do not regard any particular form of documentary evidence as indispensable in every stay application. Detailed and credible affidavit evidence may suffice. The difficulty here is that the affidavit itself provides no adequate particulars, and the assertions were expressly disputed by the Respondent. Applying Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] 2 KLR 63, the general description of investments as substantial does not establish the loss the Court is asked to prevent. 27. The judgment annexed to the supporting affidavit records that the trial court observed minimal activity during its site visit, including a well and two stalled buildings comprising small rooms at an early stage of construction. Those observations required the Applicant to explain the substantial developments now asserted. His further affidavit does not supply that explanation or particularise any subsequent investment. 28. I recognize that the decree authorizes demolition and removal of structures. Demolition may occasion physical consequences beyond temporary loss of possession, and its potential effect upon a successful appeal deserves careful consideration. Nevertheless, a demolition order does not dispense with the need to establish the alleged substantial loss. The Applicant has not sufficiently described the structures, their use, or the consequences of their removal to enable the Court to assess that loss. Page 4 of 6

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29. The principle in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410 requires an evidential foundation for substantial loss. Applied here, the Applicant has demonstrated apprehension of execution, but has not sufficiently established the nature and extent of the loss said to justify suspension of the decree. 30. The Applicant further contends that the Respondent may sell the land to a third party, thereby defeating the appeal. No proposed transaction, advertisement, communication or other concrete indication of an intended disposal has been presented. An applicant need not wait for completion of a threatened sale before seeking protection, but the apprehension must rest upon identifiable facts. The material before the Court does not establish such a foundation. 31. Describing the property as unique or of historical and sentimental significance does not cure that deficiency. Such considerations may be relevant where adequately explained and supported. Here, they remain general assertions which do not demonstrate the particular substantial loss apprehended. 32. The Applicant’s further affidavit principally challenges the trial court’s findings concerning acquisition of the land, the authenticity and effect of documents, and the evaluation of witnesses. Those questions fall for determination in the substantive appeal. They do not, without evidence of the consequences of execution, satisfy the separate requirement for substantial loss under Order 42 Rule 6. 33. The Respondent, for his part, invites the Court to characterize the appeal as frivolous and the Applicant’s documents as fraudulent. I decline to make those determinations at this stage. The application can be resolved by assessing the statutory requirements for stay without prejudging the appeal. 34. Equally, the parties’ competing allegations of violence, destruction of structures and disobedience of orders are contested. I make no finding of contempt or criminal misconduct in this ruling, and the refusal of stay does not rest upon those allegations. Security for the due performance of the decree 35. The Applicant has not proposed security or expressly undertaken to provide such security as the Court may order. His submissions acknowledge the statutory requirement but do not explain how he would meet it. 36. The distinction drawn in Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR is important. Failure to make an advance deposit is not necessarily fatal, since the Court determines the appropriate security. An expressed willingness to comply with an order for security may suffice. In this application, however, neither a proposal nor an undertaking has been advanced. 37. Moreover, the decree is not confined to ownership and possession of land. It includes damages for trespass at Kshs. 5,000 per month from January 2023 until payment in full, together with interest and costs. The Applicant has not addressed protection of those monetary obligations pending determination of the appeal. 38. The requirement concerning security therefore remains unaddressed. Nevertheless, I do not rest dismissal merely upon the absence of a proposed amount or an advance Page 5 of 6

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deposit. The more fundamental deficiency is the failure to demonstrate substantial loss. Prescribing security would not supply the missing evidence of that loss. The competing interests and conclusion 39. In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] 2 KLR 63, the Court cautioned against overlooking the successful party’s entitlement to the fruits of judgment. The Applicant’s right to pursue his appeal deserves protection, but it does not automatically entitle him to postpone execution. Such postponement must be justified within Order 42 Rule 6. 40. On the evidence before me, continued suspension of execution would deny the Respondent the benefit of his judgment without sufficient proof of the substantial loss asserted by the Applicant. The balance therefore favors refusal of stay. 41. Applying Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, and Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] 2 KLR 63, I find that the Applicant has brought the application without unreasonable delay but has failed to demonstrate substantial loss or adequately address security for due performance of the decree. VII. Disposition 42. The application consequently fails to meet the requirements of Order 42 Rule 6 and is dismissed with costs to the Respondent. 43. The interim stay granted on 23 January 2026, together with any extension thereof, is discharged. The parties are directed to take directions on disposal of the pending appeal. 44. Orders accordingly. DATED, SIGNED AND DELIVERED IN GARISSA THIS 8 TH DAY OF OCTOBER 2026. DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Mr. Mohammed Dabar (Court Assistant) Page 6 of 6

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