https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7910

Akoth v Omieri (Civil Appeal E003 of 2026) [2026] KEHC 7910 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 7910 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E003 of 2026 OA Sewe, J May 7, 2026 Between Silvanus Rachuonyo Akoth Applicant and Moses Obuya Omieri Respondent Ruling 1.The Notice of Motion dated 31st December 2025 was filed by Silvanus Rachuonyo Akoth, the applicant. It was filed pursuant to Articles 47, 48, 50, 159(2)(b) and 165(3)(e) of the Constitution of Kenya 2010, Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21, Section 158 of the Land Act, Section 31 and 34 of the Advocates Act, Cap 16, and Section 107 of the Evidence Act, Cap 80, Laws of Kenya, for the following orders:(a)That this application be certified urgent and heard ex parte in the first instance on a priority basis.(b)That pending the hearing and determination of this application and the intended appeal, the Court be pleased to stay the execution of both the orders and the ruling dated 18th December 2025 delivered in the civil case number MCCCMISC/E027/2025 between Moses Obuya Omieri and Silvanus Rachuonyo Akoth by the Senior Principal Magistrates' Court at Oyugis.(c)That pending the hearing and determination of this application and the intended appeal, the Court be pleased to set aside the ex parte orders dated 26th August 2025 by the Senior Principal Magistrate’s Court at Oyugis authorizing the respondent to carry out survey works on land Central Kasipul/Kawere/Kamagak/3803.(d)That the costs to the application be provided for. 2.The application was premised on the grounds that the respondent obtained ex parte orders for the determination of the boundary of land parcel number Central Kasipul/Kawere/Kamagak/3803 on the basis that he was the proprietor of the said land and that he had been denied the freedom to use and enjoy his occupation of the land by the applicant. The respondent had further averred that the applicant wanted to sell the said land and hence the urgent need for the adverse orders issued by the lower court against the applicant. 3.It was further the contention of the applicant that, lower court then proceeded to allow the respondent’s application ex parte and issued orders; including an order for the police to provide security for the exercise. That the respondent proceeded to serve the Rachuonyo South Land Registrar and booked a date for the visit to the land for the exercise of ascertaining the boundary for 18th September 2025. He complained that the respondent deliberately failed to serve him with the application and the subsequent orders; and that he only got to know of the developments in the court through Rachuonyo South Land Registrar's notice to the area chief, Mr. Ben Midigo. 4.Consequently, the applicant filed an application dated 12th September 2025 and an amended application dated 16th September 2025 at the Magistrate’s Court at Oyugis, seeking the setting aside of the ex parte orders to allow a full hearing of the matter. The application was heard and a ruling delivered on the 18th December 2025. The applicant was again aggrieved that the ruling was delivered without notice to him; and that his application to set aside the ex parte orders was dismissed. He therefore averred that he was condemned unheard. 5.On account of the foregoing, the applicant opted to file the instant application for stay pending appeal. He is convinced that he has an arguable appeal, and that the same will be rendered nugatory unless the orders sought herein are granted. 6.The application was supported by the applicant’s affidavit, sworn on 31st December 2025. He reiterated the grounds aforementioned and prayed that the grounds prayed for by him in the Notice of Motion dated 31st December 2025 be allowed. 7.The respondent, Moses Obuya Omieri, opposed the application. He filed a Replying Affidavit sworn by him on 13th February 2026. The respondent deposed that he bought the disputed piece of land from the appellant; and that the appellant has since then frustrated his efforts for boundary determination and actual possession of the piece of land which he sold to him. The respondent further averred that the Order dated 26th August 2025 were simply for the purpose of instructing the Officer in Charge of Kosele Police Station to provide security to the County Lands Registrar and Surveyor as they undertook their duties of determining the boundary between L. R. No. Central Kasipul/Kawere/Kamagak 3803 and 3804. 8.The respondent further averred that the said Order was extracted and served on the applicant through the area chief and that the applicant participated in the lower court matter by filing and application dated 16th September 2025. Thus, it was the contention of the respondent that the appellant misled the Court by claiming by claiming that he was condemned unheard, whereas he had filed an application, which he amended with the leave of the lower court. On whether the ruling was delivered without notice, the respondent averred that the same was posted on the Judiciary’s Case Tracking System upon delivery. 9.The respondent pointed out that the Magistrate’s Court did not sit to determine the issue of boundary between the parties; and that all it did was give orders for the provision of security personnel. Thus, the respondent posited that no prejudice was occasioned to the applicant to warrant the issuance of the orders sought. He prayed for the dismissal of the application with costs. 10.The application was canvassed by way of written submissions, pursuant to the directions given herein on the 26th January 2026. The applicant filed written submissions dated 9th March 2026. He reiterated the factual background of his application and proposed the following issues for determination:(a)Whether the appellant stands to suffer any prejudice;(b)Whether the appeal is arguable; and(c)Whether the execution would render this appeal nugatory. 11.The applicant submitted that they acquired the suit property jointly with his spouse through their joint business, Megory Agro and General Enterprise, but chose to have the land registered in the name of the applicant. He further submitted that his spouse has an interest in the suit property and is currently utilising it for agricultural purposes. He argued that execution of the lower court’s Order shall therefore affect a third party who was not a party to the matter in the lower court; but who has a legal interest in the land. The applicant made reference to Section 14 of the Matrimonial Property Act, Cap. 152 of the Laws of Kenya, which provides that where property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse. 12.On whether the appeal is arguable, the applicant pointed out that his appeal is premised on the grounds, inter alia, that:(a)He was condemned unheard granted the failure by the respondent to serve him with the application;(b)The respondent lacked the locus standi to apply for orders in the lower court yet the was not the owner to the suit land; and(c)The Magistrate’s Court lacked the jurisdiction to handle the suit. 13.The applicant made reference to Article 50 of the Constitution of Kenya, Section 20 of the Civil Procedure Act, Order 5 rule 8 of the Civil Procedure Rules and the case of Owuoti & 4 others v Mohamed & another (Civil Appeal E151 of 2021) [2023] KEHC 22521 (KLR) (21 September 2023) on the primacy of the right to be heard. On locus standi, the applicant pointed out that the respondent is neither the owner nor occupant of the suit property and therefore has no basis to apply for determination of the boundary of the suit land. 14.On the jurisdiction of the lower court, the applicant relied on Section 18(2) of the Land Registration Act and the case of Sekento v Sayo; County Surveyor, Kajiado County & another (Interested Parties) (Environment and Land Case 47 of 2023) [2025] KEELC 7341 (KLR) (28 October 2025) and submitted that the court has no jurisdiction to entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section. 15.Accordingly, the applicant urged the Court to find that it has an arguable appeal with good chances of success; and that his appeal will be rendered nugatory unless the orders sought by him are granted. He relied on Kenya Airports Authority v Mitu-Bell Welfare Society & another (Civil Application 114 of 2013) [2014] KECA 444 (KLR) (18 July 2014 and Githunguri v Jimba Credit Corp. Ltd [1988] KLR 838, among other authorities to buttress his submissions. 16.The respondent, on his part, relied on his written submissions dated 9th March 2026. He reiterated his stance that the he bought the suit property from the applicant and paid the purchased price in full; but that the applicant has refused to grant access for purposes of boundary determination. The respondent submitted that it was for this reason that he made an application to the trial court for orders that security be provided by the Police to the County Land Registrar and Surveyor for the exercise. 17.The respondent urged the Court to limit itself to the merits of the application and ignore the applicant’s submissions on the merits of his appeal. He referred to Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules and submitted that the applicant has not complied with the conditions for stay of execution as provided for in that provision. He added that the applicant had failed to show substantial loss, or that the application had been made without unreasonable delay. The applicant concluded his submissions by proposing that, should the Court make a determination that the application has merit, then he should be ordered to make a deposit of security of costs in the sum equivalent or near to what he paid as the purchase price, namely, Kshs. 600,000/=, pending the hearing of the appeal. 18.Having considered the application, the averments set out in the Supporting Affidavit as well as the Replying Affidavit filed by the respondent, the only issue arising for determination is whether the applicant has made out a good case for the grant of the order of stay of execution from the standpoint of Order 42 Rule 6 of the Civil Procedure Rules. That provision states thus:(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 19.Accordingly, for a party to succeed in an application for stay of execution, Order 42 Rule 6(2) of the Civil Procedure Rules requires such party to fulfill three conditions namely:(a)that substantial loss may result to the applicant unless the order is made;(b)that the application has been made without unreasonable delay, and(c)that such security as the court orders for the due performance of such decree. 20.It is also trite that the power of the court to grant or refuse an application for stay of execution is discretionary, and that the discretion should be exercised in such a way as not to entirely stifle an appeal. The Court of Appeal in the case of Butt v Rent Restriction Tribunal [1979] eKLR made this point thus:“…It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.” 21.Hence in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR the Court of Appeal held: -“Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.” 22.I have looked at the Memorandum of Appeal dated 31st December 2025 and it cannot be said that the appeal is frivolous because it does raise triable issues fit for canvassing by way of appeal. It raises the issues service of process and the right to fair hearing as enshrined in Article 50 of the Constitution. That being the case, and balancing the interests of the parties, I am satisfied that sufficient cause has been shown by the applicant to warrant the issuance of the orders prayed for. In this regard, I am persuaded by the position taken by Hon. Warsame, J. (as he then was) in Samvir Trustee Limited v Guardian Bank Limited (supra) that:“…the Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh 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 judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant… At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court…” 23.In terms of security, in the case of Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] eKLR it was pointed out that:“…the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal…” 24.Similarly, in the case of Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 others [2015] eKLR it was held:“…First of all, the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick…” 25.In this instance, this is an interlocutory appeal. There is no final judgment to speak of; and although the respondent proposed that security for costs be supplied in the sum of Kshs. 600,000/=, no justification was made for that proposal. 26.In the light of the foregoing, it is my finding that the applicants have made out a good case for stay of execution. Accordingly, the application dated 31st December 2025 is hereby allowed and orders granted as follows:(a)That pending the hearing and determination of the appeal, there be stay the execution of both the orders and the ruling dated 18th December 2025 delivered in the Oyugis MCCCMISC/E027/2025 between Moses Obuya Omieri and Silvanus Rachuonyo Akoth.(b)The costs to this application be costs in the intended appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF MAY 2026.................................OLGA SEWEJUDGE