Fanuel Akhayalu Kabole v Geofrey Ondong'a Ongori

execution occurs, he stands to suffer, which cannot be compensated by way of damages. 5. According to the applicant, the respondent shall not suffer any prejudice if the application is allowed. 6. Copies of the judgment, draft decree, memorandum of appeal, and letter requesting typed and certified proceedings and the judgment are attached and marked as FA 1(a) - 2(b). 7. The application is opposed vide the respondent’s grounds of respondent opposition contends dated that 22/7/2026. the application The is misconceived, bad in law, and has not met the conditions set out under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. 8. The respondent further contends that the applicant has failed to demonstrate, by evidence, that he will suffer any substantial loss if the decree is executed. That he makes allegations that do not meet the legal threshold required for the grant of stay of execution pending appeal. 9. According to the respondent, eviction or execution pursuant to a valid judgment and lawful decree does not amount to substantial loss within the meaning of Order 42 Rule 6 of the Civil Procedure Rules. RULING: KITALE ELC APPEAL NO. E011 OF 2026 – D.O.D. – 25/09/2026 2

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10. The respondent has maintained that there are no exceptional circumstances for the court to exercise its discretion in favour of the applicant. 11. Further, the respondent contends that the applicant has failed to account for the delay in filing this application, which is a delaying tactic intended to obstruct the respondent from enjoying the fruits of his judgment. 12. The respondent equally states that the application is made in bad faith and does not disclose any grounds to warrant the orders sought. 13. The respondent's position is that there is no error apparent to warrant a suspension of the decree following the merit determination of the suit where the applicant's suit was dismissed, and the respondent's counterclaim was allowed. 14. Accordingly, the respondent urges that the applicant has failed to demonstrate that the intended appeal shall be rendered nugatory if stay of execution is denied. 15. The respondent contends that the balance of convenience favours allowing him to enjoy the fruits of his judgment, rather than preserving RULING: KITALE ELC APPEAL NO. E011 OF 2026 – D.O.D. – 25/09/2026 the 3

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applicant's continued occupation of the respondent's land. 16. Directions were taken that the application be canvassed by way of written submissions and parties obliged. 17. To this end, the respondent filed written submissions dated 14/8/2026. On proof of substantial loss, the respondent relies on Order 42 Rule 6(2)(a) of the Civil Procedure Rules and the holding in James Wangalwa Cheseto & Another [2012] eKLR. -vs- Agnes He submits Naliaka that the applicant has claimed fear of eviction and execution without tendering evidence of any financial loss that he(applicant) would suffer, incapable of compensation. 18. As to the delay, the respondent submits that an application for stay of execution must be made without unreasonable delay as provided under Order 42 Rule 6(2)(k) of the Civil Procedure Rules. Further, the respondent submits that the two-month delay has not been explained. 19. The respondent submits that the applicant has not offered any security for the due performance of the decree. RULING: KITALE ELC APPEAL NO. E011 OF 2026 – D.O.D. – 25/09/2026 4

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20. On the appeal being rendered nugatory, the respondent submits that land is permanent and immovable and possession can be restored. 21. I have considered the application sole issue for my determination is whether this application is merited. 22. A party seeking stay of execution orders must meet the conditions in Order 42 Rule 6 of the Civil Procedure Rules. 23. The first consideration is substantial loss, which is said to be the cornerstone of stay orders. A party must demonstrate that they stand to suffer substantial loss with cogent and valid evidence. As held in James Wangalwa (supra), execution is a lawful process and does not amount to substantial loss. An order of stay seeks to preserve what is imminent and apparent. 24. An applicant has to provide security for the due realization of the decree, should the appeal not succeed. In this appeal, the applicant is silent on the issue of security. However, this is not fatal as the court has the discretion to impose the same. 25. The power to grant a stay is discretionary. The applicant has to demonstrate special circumstances that sway the discretion of the court in his favour. As RULING: KITALE ELC APPEAL NO. E011 OF 2026 – D.O.D. – 25/09/2026 5

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held in Samvir Trustee Ltd -vs- Guardian Bank Ltd [2007] eKLR, the court has to weigh or balance the scales of justice by ensuring that an appeal is not rendered nugatory, while at the same time, ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. 26. From the totality of the circumstances of this case, I am persuaded to allow the application but not without a condition. The applicant shall deposit Kshs. 200,000/= as security for costs within 30 days from the date hereof, failing which the stay orders shall lapse. The said amount shall be deposited into a joint account of the two advocates acting for the parties herein. 27. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 25th day of September, 2026. In the presence of: Court Assistant: Matui/Nancy Mr. Teti for the respondent Mr. Muladi holding brief for Nakitare for the appellant/applicant RULING: KITALE ELC APPEAL NO. E011 OF 2026 – D.O.D. – 25/09/2026 6

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HON. G.M. GITONGA JUDGE, ELC KITALE RULING: KITALE ELC APPEAL NO. E011 OF 2026 – D.O.D. – 25/09/2026 7

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