https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3847

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. 52 OF 2019 (O.S)** **ALPHONCE BUNDI----------------------1ST PLAINTIFF/RESPONDENT** **NICHOLAS ONDUKO BUNDI----------------------------2ND PLAINTIFF** **JOHN MOGAKA BUNDI-----------------------------------3RD PLAINTIFF** **REBECCA BISIERI BUNDI-----------------------------------4TH PLAINTIFF** **NAOMI MORAA BUNDI-----------------------------------5TH PLAINTIFF** **VERSUS** **SHAMIRA CHEPKEMEI CHELAN’GA-----1ST DEFENDANT/APPLICANT** **RAHILA CHERUTO CHELANG’A--------------------2ND DEFENDANT** **MOHAMED KIPKOSKEI CHELANG’A--------------3RD DEFENDANT** **IBRAHIM KIPKORIR CHELANG’A-------------------4TH DEFENDANT** ***(Sued as the personal representatives and beneficiaries of the estate of Ishmael Juma Chelang’a-Deceased)*** **RULING** 1. The court, through an application dated **18/3/2026,** is asked to stay the execution of its judgment and resultant decree delivered on **2/2/2026**, set them aside, and the matter to be heard on merits. The reasons are that the applicants did not attend the hearing on medical grounds, that they were condemned unheard, and that the non-attendance was not deliberate but due to circumstances beyond the deponent's control. 2. In the supporting affidavit of Shamira Chepkemei Chalanga, the 1st applicant/defendant, sworn on **18/3/2026**, it is deposed that though the suit was scheduled for hearing on **2/2/2026**, she has been unwell and undergoing chemotherapy treatment, which was due for review on the said date, rendering her incapable of attending court. She has attached a copy of the sick sheet and medical notes as annexure marked **SJC-1(a)** and **(b).** 3. The 1st defendant deposes that her illness was communicated to the court on the hearing date; nevertheless, the court proceeded with the matter and delivered the judgment without hearing the defence case, which violated her constitutional rights under **Article 50(1)** of the Constitution. 4. The 1st defendant deposes that her medical incapacity is a sufficient reason warranting the setting aside of the judgment rendered in her absence. The 1st defendant invokes **Article 159(2)(e)** of the Constitution and **Section 3A** of the Civil Procedure Act to prevent a miscarriage of justice and to ensure that justice is not defeated on technicalities. 5. The 1st defendant deposes that the plaintiffs shall suffer no prejudice as they will have an opportunity to cross-examine the witnesses and scrutinize their documents at the trial. The 1st defendant deposes that unless a stay of execution is issued and the matter heard on merits, there will be prejudice. The 1st applicant says that she is ready to abide by the orders of this court if it sets any conditions as to the orders sought. 6. Though the respondents were served with the application and an affidavit of service dated **2/4/2026**, there was no appearance on **16/4/2026**, when the matter came up for an interpartes hearing. 7. After the judgment on appeal was on **15/10/2025**, this suit was listed for hearing on **15/12/2025**. It was adjourned at the instance of the plaintiffs’ counsel on record, who had a sick child. A hearing date of **2/2/2026** was set by consent of the parties. 8. When parties came back on **2/2/2026**, the court was told by their respective lawyers during the call over that they were ready to proceed. The plaintiffs’ counsel indicated that she had four witnesses. A time allocation was given for **11:00 a.m**. 9. At **11:00 a.m.**, the plaintiffs testified through PW1, PW2, PW3, and PW4, who were cross-examined extensively by Miss Rotich, advocate for the defendants, and closed their case. 10. When counsel Miss Rotich was asked to call her witnesses, she mentioned that the 1st defendant was undergoing chemotherapy treatment and therefore was not able to attend court virtually or otherwise. Learned counsel was silent on the whereabouts of the rest of the defendants. 11. Learned counsel for the plaintiffs, Miss Njambi, opposed the application as an afterthought, since the date had been given in **December 2025**, and during the call over, no indication had been made that the defendants were not ready to proceed. 12. Learned counsel Miss Rotich, in a rejoinder, told the court that the information of sickness was relayed late by a sister to the 1st defendant, and that medical reports shall be supplied in due course. The court rejected the application for adjournment because there was no explanation why the rest of the defendants were not before the court, even if the 1st defendant was reportedly sick. Miss Rotich, advocate, opted to close the defence case. 13. Parties proceed to submit based on written submissions earlier filed on **10/3/2023** and **24/2/2023**, respectively. Parties were directed to appear for judgment at **4:00 p.m**. 14. As of the delivery of judgment at **4:00 p.m.**, there was no application to arrest the judgment, or material placed before the court on the appearance of either the 1st defendant or the rest of the defendants. The court proceeded to read the judgment in the presence of the parties’ advocates. 15. A party seeking a stay of execution must file the application within a reasonable time, demonstrate substantial loss, and offer security for due realization of the decree. In this application, the 1st defendant filed the same on **18/3/2026**. Between **2/2/2026** and **18/3/2026**, no explanation has been offered for the delay. 16. The law has not set minimum or maximum delays. It all depends on the circumstances of each case. Substantial loss is the cornerstone of stay. It is what has to be prevented from happening. The plaintiffs have been in occupation of the land as shown in the pleadings. The applicant has not told the court if the decree has been executed. 17. Execution *per* *se* is not the same as substantial loss as held in ***James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR.*** 18. Security is mandatory as held in ***Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR.*** It has to be offered as a sign of good faith. 19. Setting aside is a discretionary power exercised by the court only in deserving cases and in the interest of justice. It is not aimed at assisting a party that has deliberately, whether by evasion or otherwise, sought to obstruct the course of justice, as held in ***Shah & Others -vs- Mbogo [1968] eKLR***, or in ***Philip Chemwolo & Another -vs- Augustine Kubende [1982-88] KAR 1046*** or ***Patel -vs- E.A. Cargo Handling Services Ltd [1974] EA 75.*** 20. The supporting affidavit is not sworn on behalf of the rest of the defendants. Annexure marked **SJC-1(a)** is not signed by the hospital administrator or by any medical doctor. It is not a medical report. It does not show the nature of the sickness or whether the deponent was admitted on **2/2/2026**. There is no mention of the condition the deponent was in as of **2/2/2026**, which prevented her from attending court virtually. 21. The applicant, alongside the rest of the defendants, was granted opportunities to be heard. They cannot turn out to claim injustice and breach of fundamental right to be heard without explaining why they did not take the opportunity offered to them to attend court twice. 22. Sufficient reason is reasonable, logical, and prudent. Where there is doubt as to good faith and honesty in the explanation for non-attendance or evidence of evasiveness or alleged attempt to mislead the court, the court would be hesitant to lean towards exercising its discretion in favour of such a party. There was no medical report or plausible explanation for the non-attendance of the co-defendants on **2/2/2026** and presently. 23. The court, in the circumstances, finds no merit in the application dated **18/3/2026**. It is dismissed with costs. 24. File marked closed. 25. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis No appearance for the parties.  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**