https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3841

Bomet Technical Institute Ltd t/a Lomu Investment v Ruto & 23 others (Environment and Land Case 78 of 2012) [2026] KEELC 3841 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3841 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Case 78 of 2012 LA Omollo, J June 18, 2026 Between Bomet Technical Institute Limited T/A Lomu Investment Plaintiff and Joel Ruto 1st Defendant Zakayo Maritim 2nd Defendant Zakayo Rutoh 3rd Defendant Joseah Sitonik 4th Defendant Philimona Soi 5th Defendant John Korgoren 6th Defendant Peter Maritim 7th Defendant Stephen Rono Alias Seino 8th Defendant Andrew Maritim 9th Defendant Antony Bett 10th Defendant Benard Sang 11th Defendant John Chepkwony 12th Defendant Jolius Towett 13th Defendant Richard Chelule 14th Defendant Josea Mutai 15th Defendant Edwin Ngeno 16th Defendant Wilson Sang 17th Defendant John Rutoh 18th Defendant Bernard Sang Alias Kolonge 19th Defendant Kibet Ruto 20th Defendant Gilbert Rono 21st Defendant John Korgoren Alias Taliban 22nd Defendant The Board Of Management, St Michaels Primary School, Bomet 23rd Defendant and The County Government Of Bomet Interested Party Ruling Introduction. 1.This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 26th June, 2025 and the 23rd Defendant/Applicant’s Notice of Motion application dated 14th January, 2026. 2.The Plaintiff/Applicant’s Notice of Motion application dated 26th June, 2025 is expressed to be brought under Article 159 of the Constitution of Kenya, Section 3 and 5(1) of the Judicature Act, Order 52 (3) of the Supreme Court Rules of England and Section 3A of the Civil Procedure Act. 3.The application seeks the following prayers;a.Spentb.That an eviction order be issued against the 23rd Defendant St. Michaels Primary School Bomet and its agents, evicting them from the Plaintiff’s property Bomet Township/270.c.That the OCS, Bomet Police Station, and his/her officers to provide security and ensure compliance with the Court orders of 26th day of September, 2024 & 8th day of May, 2025 during the eviction of the Defendant and its agents from the Plaintiff property being Bomet Township/270.d.That the costs of this application be provided for. 4.The application is based on the grounds on its face and the supporting affidavit of Benard Mutai that is sworn on 26th June, 2025. 5.The 23rd Defendant/Applicant’s Notice of Motion application dated 14th January, 2026 is expressed to be brought under Articles 47 & 159 of the Constitution of Kenya, Sections 1, 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, Order 9 Rule 9, Order 22 Rule 22, Order 42 Rule 8 & Order 45 Rule 1 of the Civil Procedure Rules. 6.The application seeks the following orders;a.Spent.b.That the condition for stay of execution of the decree granted on 8th May, 2025 directing the Applicant to provide a bank guarantee of Kshs. 2,000,000/= from reputable bank be reviewed, varied substituted with a new condition requiring the 23rd Defendant to furnish a guarantee from Principal Secretary for State Department of Basic Education to a tune of Kshs. 2,000,000/= within 21 days of this order.c.The costs of this application be provided for. 7.The application is based on the grounds on its face and the supporting affidavit of Alice Marinday the 23rd Defendant/Applicant’s Head teacher that is sworn on 14th January, 2026. Factual Background. 8.The Plaintiff in its Further Further Amended Plaint dated 18th May, 2021 sought the following prayers;a.A declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit property.b.A temporary injunction restraining the Defendants, whether by themselves, agents, servants or anybody claiming under them howsoever, from further entering, occupying, building, cultivating, leasing, selling, transferring or in any way dealing with the suit property to wit plot No. Bomet Township/270 situated in Bomet Municipality.c.A permanent injunction restraining the Defendants, whether by themselves, agents, servants or anybody claiming under them howsoever, from further entering, occupying, building, cultivating, leasing, selling, transferring or in any way dealing with the suit property to wit plot No. Bomet Township/270 situated in Bomet Municipality.d.Vacant possession of the suit property.e.General damages for trespass.f.An order of eviction of the 23rd Defendant from the suit property.g.Costs of this suit together with interest thereon at such rate and for such period of time as the Court may deem fit to grant.h.Any such other or further relief as the Court may deem appropriate. 9.The Interested Party filed its statement of Defence and Counterclaim dated 15th May, 2019 where it sought the following orders;a.An order for the cancellation of the title deed for Plot No. Bomet Township/270 registered in the name of the Plaintiff (sic) Bomet Technical Institute Limited T/a Lomu Investments.b.A declaration that the Board of Management, St Michael’s Primary School is the absolute, sole and legal proprietor of the parcel of land known as Plot No. Bomet Township/270 situated in Bomet Municipality.c.A permanent order of injunction restraining the Plaintiff (now Defendant), his servants, agents, representatives, assigns and heirs from putting up any structures, both temporary and permanent, transferring, planting, grazing or doing any activities on Plot No. Bomet Township/270 to the detriment of St Michael’s Primary School.d.Costs of this suit. 10.The 23rd Defendant filed its Statement of Defence dated 30th June, 2021 where it denied the averments in the Further Further Amended Plaint. 11.The Court delivered judgement on 26th September, 2024 and issued the following orders;a.It is herein declared that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit property to wit Plot No. Bomet Township/270 situated in Bomet Municipality.b.A permanent injunction is herein issued restraining the 23rd Defendant, whether by itself, agents, servants or anybody claiming under them howsoever, from further entering, occupying, building, cultivating, leasing, selling, transferring or in any way dealing with the suit property to wit plot No. Bomet Township /270 situated in Bomet Municipality.c.Within 45 days of this judgement, the 23rd Defendant shall give vacant possession of the suit property to the Plaintiff herein.d.General damages of Kshs. 2,000,000/= (Two million shillings only) shall be paid by the 23rd Defendant to the Plaintiff to compensate it for wrongful entry onto its land.e.Costs of the suit and interest shall be at Court rates. 12.After delivery of Judgement, the 23rd Defendant filed a Notice of Motion application dated 9th October, 2024 wherein it sought orders of stay of execution of the judgement. 13.On 8th May, 2025, the Court delivered a ruling on the said application and issued the following orders;a.Pending hearing and determination of the appeal filed by the 23rd Defendant/Applicant herein, there shall be a stay of execution of the entire judgement of this Court delivered on 26th September, 2024.b.The 23rd Defendant/Applicant shall provide a bank guarantee of Kshs. 2,000,000/= from a reputable bank within thirty days of this ruling.c.In the event of failure to comply with (b) above, the orders of stay shall stand vacated.d.The costs of this application shall be in the cause. 14.The Plaintiff/Applicant’s application dated 26th June, 2025 was filed on 18th July, 2025 and first came up for hearing on 21st July, 2025. The Court issued directions that it be served upon the Respondents. 15.The application came up for hearing on 24th September, 2025 when the Court granted the 23rd Defendant/Respondent more time to file a Bank Guarantee as per the orders of the Court issued on 8th May, 2025. 16.While the application dated 26th June, 2025 was pending in Court, the 23rd Defendant/Applicant filed the Notice of Motion application dated 14th January, 2026. 17.The application first came up for hearing on 15th January, 2026 when the Court directed that it be served upon the Respondents. 18.On 19th January, 2026, the application came up for hearing and Counsel for the Interested Party/Respondent informed the Court that he will not be opposing the said application. 19.The Court issued directions that the applications dated 14th January, 2026 and 26th June, 2025 shall be heard by way of written submissions. 20.The matter was mentioned severally to confirm filing of submissions and on 20th April, 2026 it was reserved for ruling.The Plaintiff/Applicant’s Contention in the application dated 26th June, 2025. 21.The affidavit in support of the application is sworn by Benard Mutai. 22.He contends that the Court in the judgement delivered on 24th September, 2024 made the finding that he is the owner of land parcel No. Bomet/Township/270. He goes on to state that the Defendants/Respondents were ordered to vacate the suit parcel of land within 45 days. 23.He further contends that a period of eight months has lapsed and the Defendants/Respondents are yet to vacate the suit parcel of land. 24.It is his contention that he has asked them severally to vacate the said parcel of land but they have refused to do so. 25.It is also his contention that the Defendants/Respondents have exhibited blatant disobedience of Court orders thereby demonstrating disrespect for the Court’s authority. 26.It is further his contention that the Court should urgently allow the prayers sought so that he can enjoy the proprietorship of the suit parcel of land. 27.He contends that the Defendants/Respondents eviction from the suit parcel of land may be impossible without police protection. 28.He also contends that any further delay in the execution of the orders issued on 24th September, 2024 and 8th May, 2025, will be extremely prejudicial to him as he has suffered significant financial loss and psychological distress due to his inability to enforce the judgement of the Court. 29.He further contends that it is only fair and just for the Court to intervene and enable him enjoy his constitutional right to use his parcels of land without any further delay. 30.He ends his deposition by stating that it is in the interest of justice that the prayers sought be granted. The 23rd Defendant/Respondent’s Response. 31.In response to the Plaintiff/Applicant’s application, the 23rd Defendant/Respondent filed a “Further Affidavit” which is sworn on 10th September, 2025. 32.The said affidavit is sworn by Alice Marinday, the 23rd Defendant/Respondent’s Head Teacher and Secretary of the Board of Management. 33.She deposes that after the Court delivered judgement in the present suit, the 23rd Defendant/Respondent filed Nakuru CA Civil Appeal No. E119 of 2025 The Board of Management St. Michael’s Primary School vs Bomet Technical Institute Limited & Others. 34.She also deposes that the 23rd Defendant/Respondent sought and obtained orders of stay of execution of the judgement which orders were extended to 28th July, 2025. 35.She further deposes that pursuant to the directions of the Court made on 28th July, 2025, the 23rd Defendant/Respondent obtained a commitment letter from the Ministry of Education. 36.It is her deposition that the 23rd Defendant/Respondent submitted the requisite information to the bank and is now awaiting for the bank to process the guarantee which will be availed once the bank releases it to the school. 37.It is also her deposition that the 23rd Defendant/Respondent has performed all that is required of it and has no option other than wait as it has no control over the bank process. 38.It is further her deposition that she has been advised by counsel that the application dated 26th June, 2025 is defective, incompetent, devoid of merit, premature and ought to be dismissed. 39.She ends her deposition by stating that the application dated 26th June, 2025 is a strategy to defeat the appeal that is pending before the Court of Appeal. 40.The 23rd Defendant/Respondent also filed grounds of opposition of an even date which are as follows;a.The Notice of Motion is incompetent, frivolous, scandalous and devoid of merits and supporting affidavit (sic) is full of falsehoods, misrepresentations of facts and law, inconsistent and unsupported conclusions tailored to hoodwink this Court.b.The Notice of Motion offends the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules.c.The Notice of Motion is an attempt to defeat the appeal pending before the Nakuru Court of Appeal Civil No. E119 of 2025; The Board of Management St. Michaels Primary School v Bomet Technical Institute Limited & Others. 41.The 23rd Defendant/Respondent further filed a Replying Affidavit sworn by Martin Mwandeje on 5th November, 2025. 42.He deposes that he is a Principal State Counsel stationed at the Office of the Attorney General and the Department of Justice, Nairobi. 43.He also deposes that pursuant to the directions of the Court issued on 28th July, 2025, the Office of the Attorney General wrote a letter dated 31st July, 2025 to the Ministry of Education. 44.He ends his deposition by stating that on 4th November, 2025, the Office of the Attorney General did a reminder to the Ministry of Education.The 23rd Defendant/Applicant’s Contention in the application dated 14th January, 2026. 45.The affidavit in support of the application dated 14th January, 2026 is sworn by Alice Marinday the 23rd Defendant/Applicant’s Head Teacher and Secretary of the Board of Management. 46.She contends that judgement in this matter was delivered on 26th September, 2024. 47.She also contends that the terms of the judgement were that the 23rd Defendant/Applicant was required to give the Plaintiff/Applicant vacant possession of land parcel No. Bomet Township/270 within forty-five days. 48.She further contends that the 23rd Defendant/Applicant was aggrieved by the said judgement and filed a Notice of Appeal dated 7th October, 2024 and also requested for proceedings vide a letter dated 14th October, 2024. 49.It is her contention that the 23rd Defendant/Applicant subsequently filed Nakuru Court of Appeal Civil Appeal No. E119 of 2025. 50.It is also her contention that in order to preserve the subject matter of the appeal, the 23rd Defendant/Applicant sought and was granted a conditional order of stay of execution on 8th May, 2025. 51.It is further her contention that the condition for stay of execution required the 23rd Defendant/Applicant to provide a bank guarantee from a reputable bank for the sum of Kshs. 2,000,000/= from a reputable bank. 52.She contends that the 23rd Defendant/Applicant applied for a bank guarantee from KCB Bank and supplied all the requisite documents. 53.She also contends that the documents that were supplied included a resolution of the Board of Management and a commitment letter from the Principal Secretary for the State Department of Basic Education. 54.She further contends that KCB Bank gave an assurance dated 9th December, 2025 but on 11th December, 2025, it declined to issue a bank guarantee. 55.It is her contention that on 16th December, 2025, the County Director of Education informed the Principal Secretary for State Department for Basic Education about the bank declining to issue a bank guarantee. 56.It is also her contention that the Principal Secretary gave an official commitment vide the letter dated 5th November, 2025 which was forwarded on 2nd December, 2025. 57.It is further her contention that the 23rd Defendant/Applicant’s inability to comply with the condition of stay of execution is excusable as it has no control over the Bank. 58.She contends that the 23rd Defendant/Applicant has filed the application under consideration in good faith and is intended to facilitate full compliance with the Court order and preserve the subject matter of the suit. 59.She also contends that the Court is a temple of justice and it is only fair and just that the 23rd Defendant/Applicant’s application be allowed and the condition for stay be varied. 60.She further contends that if the Court does not issue an order for stay, the pending appeal will be rendered moot and the 23rd Defendant/Applicant’s operations will be stopped. 61.It is her contention that the 23rd Defendant/Applicant stands to suffer substantial loss as the eviction will result in its eviction from the suit parcel of land. 62.It is also her contention that public funds have already been invested on the suit parcel of land and the rights and interests of the pupils will be affected. 63.It is further her contention that she has been advised that the Constitution and public policy demand that the rights and interests of learners and vulnerable groups to receive quality, basic education must prevail over any other interests such as the Plaintiff/Applicant’s interests. 64.She contends that the Court must weigh the public interest in protecting government institutions against the Plaintiff/Respondent’s interests and preserve the subject matter of the appeal. 65.She ends her deposition by stating that the balance of convenience and the scales of justice are in favour of granting the prayers sought. The Plaintiff/Respondent’s Response. 66.In response to the 23rd Defendant/Applicant’s application, the Plaintiff/Respondent filed Grounds of Opposition dated 16th January, 2026. 67.They are as follows;a.That the application is bad in law, misconceived, incompetent, and an abuse of the process of the court and is hinged on air.b.That there is no public interest in illegal invasion and occupation of private land.c.That the application is not maintainable and is filed male fides with the mere intention of delaying the Respondent from enjoying the fruits of the judgment delivered over 2 years ago.d.That there is no reason or any sufficient reason upon which this court can exercise its discretion in favour of the Applicant as the Judgement obtained by the Respondent was properly and regularly obtained.e.That the proposed person that the Applicant seeks to furnish a guarantee—the Principal Secretary, State Department of Basic Education—is not a party to this suit and has no locus standi in this matter. Furthermore, the proposed guarantor has not furnished any evidence of liquidity showing an ability to satisfy the guarantee amount when demanded.f.That if the Principal Secretary wishes to cushion the Applicant, they can only do so by depositing the actual amount of Kshs 2,000,000/= in Court or in a joint interest-earning accountg.That the only grounds for a review application are the discovery of new and important evidence not previously available after due diligence, a mistake or error apparent on the face of the record, or any other sufficient reason.h.That this application does not qualify for review as there is no apparent error, no discovery of new evidence, and no sufficient reasons to warrant such orders.i.That the application is an afterthought choreographed to ward off execution, noting the Applicant has not paid any part of the decretal sum, has refused to vacate the property despite court orders, and continues to utilize the property to the Respondent's detriment.j.That the application is without any basis at all. Issues for Determination. 68.The 23rd Defendant filed submissions on 26th January, 2026 while the Plaintiff filed two sets of submissions. The Plaintiff submitted on the applications dated 26th June, 2025 and 14th January, 2026 separately. Both sets of submissions were filed on 5th March, 2026. 69.The 23rd Defendant reiterates the averments in the affidavit in support of the application dated 14th January, 2026 and submits that it has demonstrated sufficient reasons to warrant the review of the orders of the Court. 70.The 23rd Defendant also submits that the Principal Secretary vide the Letter dated 5th November, 2025 issued a guarantee for the sum of Kshs. 2,000,000. 71.The 23rd Defendant further submits that the only issue that arises for determination is whether the Court should vary the condition of stay of execution by substituting the requirement of a bank guarantee with a commitment letter from the Principal Secretary for Basic Education. 72.The 23rd Defendant relies on Articles 47 & 159 of the Constitution of Kenya, Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 & Order 45 Rule 1 of the Civil Procedure Rules and submits that there is sufficient reason for the Court to review the orders issued on 8th May, 2025. 73.It is the 23rd Defendant’s submissions that Courts have held that sufficient reasons must be analogous to the other grounds for review by ejusdem generis principles. 74.It is also the 23rd Defendant’s submissions that it is not contesting the order for security that was issued on 8th May, 2025. 75.It is further the 23rd Defendant’s submissions that it has demonstrated that requiring it to comply with the said order will occasion injustice, unnecessary delays and would be unfair. 76.The 23rd Defendant submits that it has demonstrated the difficulties it has experienced in enforcing the said order and it has therefore demonstrated sufficient reason for reviewing the orders issued on 8th May, 2025. 77.The 23rd Defendant relies on the judicial decisions of Pancras T. Swai vs Kenya Breweries Limited [2014] eKLR and Sarder Mohamed vs Charan Singh Nand Sing & another [1959] EA 793 in support of its submissions. 78.The 23rd Defendant also submits that KCB Bank refused to issue the bank guarantee on account of cash-flow insufficiency. 79.The 23rd Defendant further submits that KCB requested it to deposit Kshs. 2,000,000/= to serve as security for the guarantee. 80.It is the 23rd Defendant’s submissions that it does not have that kind of money as it is not a profit-making venture and it relies on capitation from the government. 81.It is also the 23rd Defendant’s submissions that it cannot compel any bank to issue a guarantee as their relationship is purely contractual. 82.It is further the 23rd Defendant’s submissions that the refusal by KCB Bank is not due to unwillingness to comply with orders of the Court but arises from financial realities facing public primary schools in Kenya. 83.The 23rd Defendant submits that continued insistence on a bank guarantee would amount to requiring it to perform an impossibility thereby defeating the very purpose of the orders of stay execution that was granted by the Court on 8th May, 2025. 84.The 23rd Defendant also submits that it is trite law that a party should not be denied the benefit of stay of execution or right of appeal due to conditions that are incapable of compliance, despite good faith efforts. 85.The 23rd Defendant further submits that the purpose of conditions attached to stay orders is to secure the due performance of the decree and not frustrate or stifle the right of appeal. 86.The 23rd Defendant relies on the judicial decisions of Butt vs Rent Restriction Tribunal [1982] KLR 417 and Absalom Dova vs Tarbo Transporters [2013] eKLR in support of its submissions. 87.The 23rd Defendant submits that it is a public primary school established and operated under the Basic Education Act and managed by a Board of Management. 88.The 23rd Defendant also submits that it does not generate independent commercial income to meet the obligations as demanded by the Bank and the Plaintiff. 89.The 23rd Defendant reiterates that it relies on capitation from the government and is subject to strict financial controls under the Constitution and the Public Finance Management Act. 90.The 23rd Defendant further submits that the Plaintiff’s proposal to have the amount deposited in an interest earning account is unconscionable and offends the provisions of Order 22 Rule 22 of the Civil Procedure Rules. 91.It is the 23rd Defendant’s submissions that cash flow insufficiency in public institutions is a structural reality and it should not be construed as unwillingness or inability to ultimately satisfy a lawful decree. 92.It is also the 23rd Defendant’s submissions that the Principal Secretary is the Chief Accounting Officer of the State Department of Education. 93.It is further the 23rd Defendant’s submissions that the Principal Secretary is mandated to oversee and account for funds allocated to public primary schools. 94.The 23rd Defendant submits that the Principal Secretary is answerable to parliament and a commitment letter issued by the said office is a binding and credible government undertaking that is sufficient to secure the Plaintiff’s interests in the event the appeal fails. 95.The 23rd Defendant urges the Court to strike a balance between the Plaintiff’s right to enjoy the fruits of its judgement and its right of appeal. 96.The 23rd Defendant reiterates that it has demonstrated genuine inability to comply with the orders of the Court and urges the Court to exercise its discretion and accept the proposed alternative security. 97.On the application dated 26th June, 2025, the 23rd Defendant submits on the following issues;a.The effect of stay of execution. (sic)b.Whether eviction can issue while an appeal is pending.c.Whether contempt proceedings can be sustained where decree is stayed.d.Whether the application offends the doctrine of sub judice and the principle of orderly administration of justice.e.Balancing convenience and interest of justice. (sic) 98.On the first issue, the 23rd Defendant submits that orders of stay of execution suspends the enforceability of a decree pending the hearing and determination of an appeal. 99.The 23rd Defendant also submits that the Court issued orders of stay of execution of the judgement and therefore the Plaintiff’s application has been filed prematurely. 100.On the second issue, the 23rd Defendant reiterates that since execution was stayed, the prayer for eviction is premature and irregular. 101.On the third issue, the 23rd Defendant submits that where there are orders of stay, there is no obligation on it to comply with the decree of the Court. 102.On the fourth issue, the 23rd Defendant submits that its appeal raises issues touching on the validity and enforceability of the decree. 103.The 23rd Defendant also submits that if the Court entertains the application, then it will pre-empt the outcome of the appeal and will result in conflicting decisions. 104.On the fifth issue, the 23rd Defendant submits that the Court should consider that it is a public primary school which has over 600 pupils who will suffer harm if evicted. 105.The 23rd Defendant concludes its submissions by urging the Court to dismiss the Plaintiff’s application. 106.On the application dated 26th June, 2025, the Plaintiff reiterates the averments in the affidavit in support of the application and submits that the Court has been lenient with the 23rd Defendant by granting a conditional stay of execution. 107.The Plaintiff also submits that the Court has generously extended time for the 23rd Defendant to furnish the bank guarantee and as it stands, there are no existing orders of stay of execution. 108.The Plaintiff further submits that the 23rd Defendant filed an appeal against the judgement of the Court which is not an automatic order of stay of execution. 109.It is the Plaintiff’s submissions that the police do not ordinarily provide protection for eviction without an express order of the Court. 110.It is also the Plaintiff’s submissions that if the Court grants the orders sought, the role of the Police will be limited to maintaining law and order and preventing breach of peace. 111.The Plaintiff concludes its submissions by urging the Court to allow the prayers sought. 112.On the application dated 14th January, 2026, the Plaintiff submits that the Principal Secretary State Department of Basic Education is not a party to the present proceedings and he therefore has no locus standi in this suit. 113.The Plaintiff also submits that the proposed guarantor has not furnished any evidence of liquidity to show that he will be able to satisfy the amount guaranteed. 114.The Plaintiff further submits that if at all the Principal Secretary State Department of Basic Education wishes to cushion the 23rd Defendant, then he should deposit the sum of Kshs. 2,000,000/= in Court or in a joint interest earning account. 115.It is the Plaintiff’s submissions that in the ruling delivered on 8th May, 2025, the Court issued an order for a bank guarantee as it provides unconditional, immediate and enforceable protection, unlike a personal guarantee. 116.It is also the Plaintiff’s submissions that what the 23rd Defendant is proposing to provide to the Court is a purported letter of commitment which has no value and cannot be enforced in case of default. 117.It is further the Plaintiff’s submissions that a letter of commitment exposes it to undue risk as enforcement requires the institution of fresh proceedings against the guarantor potentially leading to delays, costs and irrecoverable losses if the guarantor is insolvent or has no attachable assets. 118.The Plaintiff submits that no sufficient cause has been shown to warrant the varying of the Court’s initial order. 119.The Plaintiff also submits that the 23rd Defendant’s application does not warrant the Court to issue the orders sought and it should therefore be dismissed with costs. Analysis and Determination. 120.Having considered the applications, the responses thereto and the submissions, my view is that the following issues that arise for determination:a.Whether the condition for stay of execution issued on 8th May, 2025 should be reviewed.b.Whether an eviction order should issue against the 23rd Defendant.c.Whether the OCS Bomet Police Station should provide security during the eviction of the 23rd Defendant and its agents from land parcel No. Bomet/Township/270.d.Who should bear costs of the applications. A. Whether the condition for stay of execution issued on 8th May, 2025 should be reviewed. 121.The 23rd Defendant contends that the Court delivered judgement on 26th September, 2024 and ordered it to vacate land parcel No. Bomet/Township/270 within forty-five days. 122.The 23rd Defendant also contends that it filed an application dated 9th October, 2024 and sought orders of stay of execution of the said judgement. 123.The 23rd Defendant further contends that on 8th May, 2025, the Court issued orders of stay of execution of the judgement on condition that it provides a bank guarantee of Kshs. 2,000,000/= from a reputable bank. 124.It is the 23rd Defendant’s contention that it filed Nakuru Court of Appeal Civil Appeal No. E119 of 2025. 125.It is also the 23rd Defendant’s contention that in order to comply with the condition for stay, it applied for a bank guarantee from KCB Bank and supplied it with all the requisite documents. 126.It is further the 23rd Defendant’s contention that on 17th December, 2025, KCB Bank declined to issue a bank guarantee and submits that the denial was on account of cash flow insufficiency. 127.The 23rd Defendant submits that it does not have Kshs. 2,000,000/= as it is not a profit-making venture and that it cannot compel any bank to give it a bank guarantee. 128.The 23rd Defendant therefore seeks that the condition of stay of execution that required it to furnish a bank guarantee be reviewed and substituted with a new condition requiring it to furnish a guarantee from the Principal Secretary State Department of Basic Education. 129.In response, the Plaintiff submits that the Principal Secretary State Department of Basic Education is not a party to the present proceedings and nothing has been availed to show that he is able to satisfy the amount of Kshs. 2,000,000/=. 130.The Plaintiff also submits that if at all the Principal Secretary State Department of Basic Education wishes to cushion the 23rd Defendant, then he should deposit Kshs. 2,000,000/= in Court or in a joint interest earning account. 131.Section 80 of the Civil Procedure Act provides as follows;“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 132.Order 45 Rule 1 and 2 of the Civil Procedure Rules provides as follows;“(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review.” 133.In the judicial decision of Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR the Court held as follows:“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.” (Emphasis mine) 134.As was held in the above cited judicial decision, the Court can only review its orders on the following grounds;a.Discovery of new evidence which was not within the knowledge of the Applicant or could not have been produced at the time an order was made or a decree issued.b.On account of mistake or error apparent on the face of the record.c.For any sufficient reason. 135.The 23rd Defendant is seeking that the condition for stay of execution be reviewed on the ground of “any sufficient reason”. 136.In re Estate of Eliud Kiprono Chepkwony (Deceased) [2026] KEHC 5430 (KLR) the Court cited the Court of Appeal judicial decision of Pancras T. Swai v Kenya Breweries Limited [2005] KEHC 1832 (KLR) where it was held as follows;“…As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of section 80 of the Civil Procedure Act, cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.” (Emphasis mine) 137.Among the documents attached to the affidavit in support of the application is a copy of a letter dated 5th November, 2025. Theletter is written by Amb. (Prof) Julius K. Bitok, CBS Principal Secretary, State Department for Basic Education. The letter is ref No. MOE.GEN/31L/38/VIL.V (39) and addressed to the Manager, Kenya Commercial Bank, Bomet Branch. 138.The reference of the letter is, “Kericho ELC Case No. 78 of 2012 Bomet Technical Institute Limited T/A Lomu Investment vs Joel Ruto & 22 Others, The Board of Management St Michaels Primary School & County Government of Bomet”. The contents of the letter are as follows;“The above matter refers.This is to confirm that St. Michaels Primary School located in Chepalungu Sub-County Bomet County is a public school and the State Department for Basic Education makes a guarantee for the sum of Kshs. 2 million on behalf of the school in relation to this matter. 139.A copy of a letter dated 9th December, 2025 written by Paul Mutai, the KCB Bank Branch Manager Bomet has been attached to the affidavit in support of the application. The said letter is addressed to the Principal Secretary State Department for Basic Education and the reference is “Kericho ELC No. 78 of 2012 Bomet Technical Institute Limited T/A Lomu Investment vs Joel Ruto & 22 Others, The Board of Management St Michaels Primary School & County Government of Bomet”. 140.The letter acknowledges receipt of a letter dated 5th November, 2025 together with a request for a bank guarantee of Kshs. 2,000,000/=. The letter also acknowledges the receipt of a letter dated 2nd December, 2025 from the County Director of Education, Bomet County. The letter states that the application is in process and feedback will be provided in four days. 141.A letter dated 11th December, 2025 has also been attached. The letter is written by Paul C. Mutai the Branch Manager, KCB Bank Bomet and addressed to the Headteacher St. Michael Primary School Bomet. The reference of the letter is “Application for bank guarantee for Kshs. 2,000,000”. The contents of the letter are as follows;“We refer to your application for a Bank Guarantee for Kshs. 2,000,000/= dated 17.11.2025 and wish to advise that after a comprehensive review of the documentation and financial information provided, we regret to advise that the application is not successful. The assessment concluded that the current cash flows are not sufficient to support the repayment obligations associated with the proposed guarantee…” 142.The 23rd Defendant has also attached copies of letters dated 28th July, 2025 and 4th November, 2025 to the Replying Affidavit sworn by Martin Mwandeje on 5th November, 2025. The letters are addressed to the Principal Secretary, Ministry of Education, State Department for Basic Education and they request a commitment letter from the Ministry of Education to confirm that the 23rd Defendant is a public school and that it will indemnify the bank to a tune of Kshs. 2,000,000/=. 143.It is not disputed that in the judgement delivered on 26th September, 2024, the 23rd Defendant was ordered to vacate land parcel No. Bomet Township/270 within forty-five days. 144.It is also not disputed that on 8th May, 2025, the Court issued an order of stay of execution of the judgement on condition that the 23rd Defendant provides a bank guarantee of Kshs. 2,000,000/= from a reputable bank within thirty days. 145.A perusal of the Court record shows that the 23rd Defendant filed a Notice of Motion application dated 9th June, 2025 seeking for extension of time to furnish the bank guarantee. 146.On 31st July, 2025, the application was allowed by consent and the 23rd Defendant was granted an extension of 30 days to obtain a bank guarantee in satisfaction of the stay orders issued on 8th May, 2025. 147.The matter was mentioned on 24th September, 2025, when Counsel for the 23rd Defendant informed the Court that the Ministry of Education had issued a commitment letter to KCB Bank – Bomet Branch. 148.Counsel also informed the Court that the Bank Manager informed them that they were waiting for a letter of authority from their Head Quarters to authorize the issuance of a Bank Guarantee. 149.Counsel then sought for an extension of time to get the Bank Guarantee. 150.The Court extended time within which the 23rd Defendant was to obtain the bank guarantee by a further thirty days. 151.When the matter came up for mention on 6th November, 2025, Counsel for the 23rd Defendant informed the Court that they had obtained a Commitment Letter from the Principal Secretary, State Department for Education dated 5th November, 2025 which was addressed to the Bank Manager- KCB, Bomet Branch. The letter requested that a bank guarantee be issued. 152.Counsel then requested for more time to furnish a bank guarantee. The Court extended the time within which the bank guarantee was to be furnished and on 19th January, 2026, the Court was informed that the bank had declined to issue a bank guarantee. 153.From the Court record it is evident that a period of about twelve months have lapsed since the Court issued an order for stay of execution on condition that the 23rd Defendant furnishes a bank guarantee. 154.From the proceedings on the Court record and from the copies of letters attached by the 23rd Defendant, it is evident that the 23rd Defendant has made positive efforts to secure a bank guarantee. 155.It is also apparent that the 23rd Defendant has experienced difficulties in obtaining the bank guarantee. The said difficulties have been explained as insufficient cash flow in the bank account held by the 23rd Defendant which is attributed to reduced capitation from the government. The 23rd Defendant further explains that this is a financial reality facing public primary schools in Kenya. 156.Taking into consideration the totality of the circumstances of this suit and the 23rd Defendant’s willingness to comply with the directions of the Court, it is my view that the 23rd Defendant has demonstrated sufficient cause for the review of the condition for stay of execution issued on 8th May, 2025. 157.I note that the Plaintiff submits that the Principal Secretary for the State Department for Basic Education is not a party to the present proceedings and cannot therefore issue a guarantee. 158.It is my view that the Principal Secretary for the State Department for Basic Education does not have to be a party to the present proceedings in order to issue a guarantee in the same way that the Kenya Commercial Bank was not a party to this suit but was approached to issue a guarantee. 159.My understanding is that the Principal Secretary for the State Department for Basic Education is issuing a guarantee on account of the position he holds as the Chief Accounting Officer of the State Department of Education and also on account of the fact that he is mandated to oversee and account for funds allocated to public primary schools. 160.Consequently, I find that the 23rd Defendant has shown sufficient cause for reviewing and varying the condition attached to the stay of execution of the decree granted on 8th May, 2025. B. Whether an eviction order should issue against the 23rd Defendant. 161.In the application dated 26th June, 2025, the Plaintiff seeks that eviction orders be issued against the 23rd Defendant. 162.It is important to state that the prayer for eviction is hinged on the non-compliance with the conditions attached to the orders of stay of execution issued by this Court. 163.The orders of stay of execution were intended to allow for the hearing and determination of the appeal filed against the judgment of this Court. 164.Given my finding on issue (A) above, the issue whether an eviction order should issue against the 23rd Defendant is not ripe for determination. C. Whether the OCS Bomet Police Station should provide security during the eviction of the 23rd Defendant and its agents from land parcel No. Bomet/Township/270. 165.Given my finding on issue (A) above, this prayer cannot be granted. D. Who should bear costs of the applications. 166.The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 167.A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 168.In the result, I find and order as follows;a.The 23rd Defendant’s Notice of Motion application dated 14th January, 2026 has merit and it is hereby allowed as follows:i.Order (b) of the ruling delivered on 8th May, 2025 is hereby reviewed and varied on terms that the condition for stay of execution of the decree granted on 8th May, 2025 directing the Applicant to provide a bank guarantee of Kshs. 2,000,000/= from reputable bank is hereby reviewed, varied substituted with a new condition; that the 23rd Defendant shall furnish a guarantee from the Principal Secretary for the State Department for Basic Education for a sum of Kshs. 2,000,000/= within 21 days of the date hereof.b.The Plaintiff’s Notice of Motion application dated 26th June, 2025 is hereby struck out.c.The costs of the Notice of Motion application dated 26th June, 2025 and the Notice of Motion application dated 14th January, 2026 shall be in the cause. 169.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 18TH DAY OF JUNE, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Okiro for the Plaintiff/RespondentMr. Odongo for 23rd Defendant/ApplicantCourt Assistant: Mr. Joseph Makori------------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 78 OF 2012 [KERICHO] Page 23 of 23