https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3790

Sumbule v Makayo & another (Enviromental and Land Originating Summons 36 of 2011) [2026] KEELC 3790 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3790 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Enviromental and Land Originating Summons 36 of 2011 AK Bor, J June 18, 2026 Between Baffin Sumbule Plaintiff and Tom Wanyonyi Makayo 1st Defendant Julius Makhapila Wanyama 2nd Defendant Ruling 1.The Defendants filed the application dated 24th February 2026 seeking to have Wotia Wangila & Co advocates come on record on their behalf and stay of execution of the judgment delivered on 4/12/2025 as well as stay of taxation of the Plaintiff’s bill of costs pending hearing and determination of the Defendants’ intended appeal. 2.The application was made on the grounds that judgment was delivered on 4/12/2025 in favour of the Plaintiff vide which the court found that the Plaintiff was entitled to the suit land being East Bukusu/West Sang’alo/1531 (the suit land). Being dissatisfied with that judgement, the Defendants filed Kisumu Court of Appeal Civil Application No. E030 of 2026 seeking leave to lodge an appeal out of time. The Defendants urged that the intended appeal raised serious and arguable issues of law and fact and that if stay was not granted, execution and taxation would proceed, out of which they would suffer substantial loss. 3.The application was supported by the affidavit of John Makayo Kituyi who exhibited a copy of the judgment and the application lodged at the Court of Appeal. He averred that the Plaintiff had filed a bill of costs, which was scheduled for taxation on 25/2/2026. He added that the application had been filed without unreasonable delay and that the Defendants stood to suffer substantial loss if they were compelled to satisfy the costs before their appeal was heard. 4.The Plaintiff swore the replying affidavit in opposition to the application for stay of execution. He averred that the Defendants and their advocate were aware of the date of the delivery of judgement and added that the application for extension of time to lodge an appeal was filed a month and half later than the stipulated time for filing an appeal. He added that he had been in occupation of the suit land since 2000 and had extensively developed the land. 5.John Makayo Kituyi swore the supplementary affidavit in which he deponed that at the time the judgment was delivered, he was unwell and was undergoing medical treatment in Eldoret and could not give timely instructions to their advocate. He exhibited copies of the medical treatment records. He stated that the Plaintiff’s occupation of the suit land had been disputed and that demand notices were issued to the Plaintiff to vacate the suit land or abide by the new terms. Regarding the taxation of the costs, he urged that if taxation proceeds and they pay the costs, the Plaintiff may not have the ability to refund whatever sum may paid in costs. 6.The application was canvassed through written submissions. The Defendants submitted that they had met the threshold for the grant of the orders sought by demonstrating that the Plaintiff had already filed a bill of costs and taxation was imminent. They submitted that the Plaintiff had not placed before the court evidence to demonstrate the financial ability to refund the decretal sum should their appeal succeed. Regarding delay, they explained that it was occasioned by circumstances beyond their control including the illness of the 1st Defendant and the making of burial arrangement following the death of one of the parties. They urged that the delay, if any, was well explained, reasonable and excusable. 7.The Defendants submitted that they were ready and willing to comply with any reasonable conditions that this court may impose on the aspect of furnishing security for the due performance of the decree. They urged that they had an arguable appeal and that the court was enjoined to preserve the subject matter of litigation to ensure that the right of appeal was not illusory. 8.The Plaintiff submitted that under Order 42 Rule 6 (4) of the Civil Procedure Act, an appeal to the Court of Appeal is deemed to have been filed when under the rules of that Court a notice of appeal has been given. He pointed out that there is no appeal yet and went ahead to cite decisions regarding interpretation given to what constitutes an appeal under rules of the Court of Appeal. 9.On the bill of the costs, the Plaintiff submitted that the Defendants bore the burden of demonstrating that they would suffer substantial loss if the bill of costs is taxed and that they needed to offer security for costs as a condition for the stay of taxation. He argued that the Defendants had not demonstrated that if they paid the costs then such sums would not be recoverable in the event that their intended appeal succeeded. He urged the court to dismiss the application. 10.Under Order 42 Rule 6 of the Civil Procedure Rules the requirements to be satisfied before the court can grant stay of execution are that the application should be made without unreasonable delay, an applicant is required to demonstrate that they will suffer substantial loss unless stay is granted, and lastly, an applicant is required to furnish security for the due performance of the decree. It is not in dispute that no appeal has been filed and the Defendants lodged their application for leave to file an appeal out of time at the Court of Appeal. It has not been demonstrated by the Defendants what loss they will suffer if the bill of costs is taxed and execution proceeds. It is not controverted that the Plaintiff occupies the suit land. The Defendants merely stated that they would suffer loss without elaborating the nature of loss that they would suffer if execution proceeds. Once the bill is taxed and the Defendants obtain leave to appeal out of time, they can seek stay and offer security based on the taxed costs which can be deposited either in court or in an interest earning account in the joint names of the advocates for both parties. 11.The court declines to grant the orders sought in the application dated 24/2/2026. The Plaintiff is awarded the costs of that application. DELIVERED VIRTUALLY AT BUNGOMA THIS 18TH DAY OF JUNE 2026.K. BORJUDGEIn the presence of: -Ms. J. Wakasa holding brief for Mr. G. Murunga for the PlaintiffMr. Wotia Wangila for the DefendantsCourt Assistants- Bett & Metrine