Automated Summary
Key Facts
Environment and Land Appeal E74 of 2025 involves Benard Simiyu Otube appealing a judgment of the Chief Magistrate's Court at Nakuru (CMELC/219/2018) delivered on 23 October 2025. The Appellant sought a stay of execution pending appeal, alleging Respondents' agents visited the suit property and he feared eviction, which would render his appeal nugatory. The Environment and Land Court granted a conditional stay requiring a Kshs. 200,000 deposit in a joint interest-earning account within 30 days.
Issues
- The court determined that the appellant demonstrated substantial loss (fear of eviction) and was willing to provide security, thus granting a conditional stay of execution of the judgment and decree delivered on 23rd October 2025 pending the appeal. The court ordered the appellant to deposit Kshs. 200,000 in a joint interest-bearing account within 30 days.
- The court ordered that the costs of the application be borne by the appellant, as prayed in the application.
Holdings
The court granted a conditional stay of execution of the judgment and decree delivered on 23rd October 2025, requiring the Applicant to deposit Kshs. 200,000 within 30 days in a joint interest-earning account. The stay lapses if the deposit is not made, balancing the Appellant's need to avoid eviction with the Respondent's right to the judgment while ensuring adequate protection for both parties.
Remedies
The court granted a conditional stay of execution, requiring the applicant to deposit Kshs. 200,000 in a joint interest earning account within 30 days, failure to which the stay lapses.
Legal Principles
The court applied Order 42 Rule 6 of the Civil Procedure Rules, requiring the applicant to demonstrate substantial loss if execution proceeds, reasonable delay in filing, and provision of security. A conditional stay was granted with a requirement to deposit Kshs. 200,000 in a joint interest-earning account within 30 days.
Precedent Name
- Nduhiu Gitahi vs. Warugongo
- Arun C Sharma v Ashana Raikundalia
- Njoroge v Wambui
- M/s Portreitz Maternity vs James Karanga Kabia
- Republic v Retirement Benefits Appeals Tribunal Ex-parte Heritage A.I.I. Insurance Company Limited Retirement Benefits Scheme
- RWW v EKW
- Noor Said v Mary Mwawasi Manga
- Obonyo v Achieng & another
Cited Statute
Civil Procedure Act
Judge Name
M. A. Odeny
Passage Text
- Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.
- In the interest of justice, I hereby grant a conditional stay of execution and order that the Applicant deposit Kshs. 200,000/ (Two Hundred Thousand Only) in a joint interest earning account of the advocates on record within 30 days, failure to which the stay lapses.
- The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the Judgment debtor... Civil process is quite different because in civil process the Judgment is like a debt hence the 1st applicant become and are Judgment debtors in relation to the respondent.