https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4503

Chebii v Inspector General of Police & 3 others (Environment and Land Petition 13 of 2016) [2026] KEELC 4503 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4503 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Petition 13 of 2016 CK Yano, J July 16, 2026 Between John Chumo Chebii Petitioner and The Inspector General of Police 1st Respondent The National Land Commission 2nd Respondent Ministry of Lands, Housing & Urban Development 3rd Respondent Attorney General 4th Respondent Ruling 1.There are two competing applications before this court for determination. A. Notice of Motion dated 30th September, 2025 2.The first application is the Notice of Motion dated 30th September, 2025. It is brought by the Hon. Attorney General who seeks the following orders:-1.That the Honourable Deputy Registrar do sign all necessary mutation forms, application for Land Control Board Consent and transfer forms in respect of LR No. Irong/Iten/515 which had been subdivided into LR No. Irong/Iten/2933 and Irong/Iten/2934 to effect the decree of this Honourable Court delivered on 6th February, 2025.2.That the Honourable Deputy Registrar do execute all requisite documents on behalf of any party who fails, neglects or refuses to sign the said documents as required by the decree.3.That the costs of this application be provided for. 3.This application is premised on the grounds set out in the Motion and supported by an Affidavit sworn by Winnie Jebet Cheruiyot, the State Counsel in conduct of this suit. She deponed that on 6th February, 2025, the court delivered its judgment in this suit. That the court declared the Petitioner’s acquisition of LR No. Irong/Iten/515, its subdivision into LR No. Irong/Iten/2933 and Irong/Iten/ 2934 (the suit property herein) and issuance of title to the Petitioner and other parties unconstitutional, illegal, unlawful, null and void ab initio. 4.Ms. Cheruiyot avers that the court consequently ordered the cancellation of the registers for LR No. Irong/Iten/2933 and Irong/Iten/2934 and a reversion to LR No. Irong/Iten/515, as well as a rectification of the register vesting the land in the Principal Secretary, National Treasury. She depones that despite the orders of this court, the Respondents have failed, neglected and/or refused to execute the necessary mutation forms, application for Land Control Board (LCB) Consent and transfer forms required to give effect to the Court’s decree. She claims that the Petitioner has neither appealed nor sought to have the judgment set aside or stayed, and the period for filing the appeal has since lapsed thus he will not be prejudiced. 5.She further averred that the Applicants are desirous of obtaining title to LR No. Irong/Iten /515 so as to secure and protect the suit property. She states that the delay on executing the said documents is prejudicial to the interests of justice and undermines the authority of this court. She has averred that it has become necessary to seek the court’s intervention to authorise the Deputy Registrar to sign the requisite documents to implement the decree effectively. 6.Upon service of the application, the Petitioner opposed it by filing a Replying Affidavit dated 23rd March, 2026. He termed the application incompetent, incurably defective and an abuse of the court process. He averred that the application is premature considering he had filed an appeal, being Civil Appeal No. E066 of 2026 and had sought stay pending appeal vide an application dated 29th October, 2025. He states that in the event the Appeal succeeds, recovery of the property would involve a lot of expense and time. The Petitioner depones that it would be fair and just if the transfer is deferred and/or held in abeyance pending hearing and determination of the appeal. B. Notice of Motion dated 29th October, 2025 7.The Petitioner then filed the second Notice of Motion Application dated 29th October, 2025 seeking the following orders: -1.Spent2.Spent3.That in the interim, there be a stay of execution of judgment delivered on 6/2/2025 and consequential decree pending hearing and determination of the intended appeal. 8.The grounds advanced in favour of this Application are set out in the Petitioner’s Supporting Affidavit dated 27th October, 2025. The Petitioner deponed that the court, in its judgment delivered on 6th February, 2025, dismissed his Petition and allowed the cross-petition. That being dissatisfied with the decision, he has since filed a Notice of Appeal, and having recently obtained proceedings, is preparing a record of appeal. He notes that the Respondents have initiated execution proceedings by filing an application to have the Deputy Registrar sign transfer documents. 9.The Petitioner avers that unless stay is granted, he stands to suffer substantial loss as it would occasion him great expense in costs and incidental expenses towards re-conveyance of the suit property. For these reasons, the Petitioner avers that the balance of convenience tilts in favour of status quo with respect to registration of the suit property. He averred that the issue of security for the due performance of the decree does not arise since the Respondents are the ones in occupation and use of the land. 10.The Application was opposed by the Hon. Attorney General through Grounds of Opposition dated 7th March, 2026. The Hon. AG opposed the application on grounds that it is incompetent, bad in law and an abuse of the court process. That the Petitioner had not complied with the mandatory requirements for grant of an order of stay pending Appeal under Order 42 Rule 6 of the Civil Procedure Rules. It is alleged that the Petitioner has not filed or served any Notice of Appeal as required under the Court of Appeal Rules. 11.The Hon. AG avers that there is no valid or competent appeal capable of being protected by an order of stay. That the Notice of Appeal, if any, had not been endorsed, received or certified by the Deputy Registrar and the Petitioner had not produced any evidence of service thereof upon the Respondents. In that regard, the Hon. AG avers that the application is premature, misconceived and devoid of legal basis. Further, that the application had been brought after inordinate and unexplained delay since judgment was made on 6th February, 2025 and the Application was filed eight months later, on 29th October, 2025. 12.It is alleged that the delay was deliberate and calculated at obstructing and frustrating the Respondents from enjoying the fruits of the judgment. The Hon. AG states that the application was filed after they had moved the court for execution, and only aims to delay execution. That the Petitioner has neither demonstrated that he will suffer substantial loss if the stay is not granted, nor offered any security for the due performance of the decree. The Hon. AG thus asked that the Respondents be allowed to enjoy the fruits of their judgment in the interest of justice. Submissions: 13.The two applications were canvassed by way of written submissions. The Hon. AG filed submissions dated 20th April, 2026 with respect to the two applications. The Petitioner filed submissions dated 23rd March, 2026 also with respect to the two applications. The Hon. AG’s Submissions; 14.The Hon. AG in opposing the application for stay of execution submitted that the Petitioner’s Motion is not premised on any legal provision. Counsel submitted that the Respondents were never served with the Notice of Appeal, and that the said Notice was not endorsed, received or certified by the Deputy Registrar. He cited Order 42 Rule 6(2) of the Civil procedure Rules as setting out the principles for grant of an order of stay of execution pending appeal. He submitted that courts are further enjoined to give effect to the overriding objectives under Sections 1A and 1B of the Civil Procedure Act while considering an application for stay. 15.The Hon. AG submitted that judgment herein was delivered on 6th February, 2025 whereas the application for stay was filed on 29th October, 2025, about 8 months later. He submitted that no explanation has been tendered for the delay in filing the application, and claimed that the Petitioner was only roused from slumber by the Respondents’ application seeking execution. That this 8-month delay thereby constitutes an inordinate delay. He relied on Simon Wachira Nyaga vs Patrick Wamwira , Kerugoya Civil Appeal No. 211 of 2013 (2018) eKLR, Utalii Transport Company Limited vs NIC Bank Limited and Ivita vs Kyumbu. 16.On the issue of substantial loss, Counsel submitted that the loss in terms of expenses related to re-conveying the property claimed by the Petitioner do not constitute substantial loss within the meaning of the law. He argued that substantial loss must be real, substantial and certain, not speculative or a minor inconvenience or a financial loss. Counsel admitted that the suit property is indeed in the Respondents’ occupation, thus the registration in their favour does not render the appeal nugatory. Counsel cited Machira t/a Machira & co. Advocates vs East African Standard, Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others (2012) KEHC 5872 (KLR), Daniel Chetul Rotich & 2 Others vs Emirates Airlines Civil Case 368 of 2001 and Kenya Shell Limited vs Benjamin Kibii (sic). 17.Counsel further submitted that the petitioner’s claim that the issue of security does not arise since the Respondents are in occupation is a fundamental misinterpretation of Order 42 Rule 6, under which security is a mandatory prerequisite for stay. Counsel relied on Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & co. Advocates, and argued that by failing to offer even a nominal bond, the Petitioner has failed to meet the statutory threshold. He submitted that occupation of the suit property by the Respondents does not satisfy the Petitioner’s legal obligation to meet the statutory threshold. 18.Turning to the application for execution, the Hon. AG submitted that under Order 22 Rule, where any party refuses to obey a decree for execution of a document, the court may direct the Deputy Registrar to execute such document. Counsel further submitted that Section 14 of the Environment and Land Court Act provides that a judgment of the court is enforceable in accordance with the Civil Procedure Act. Counsel adds that under Section 3A of the Civil Procedure Act, the Court has inherent powers to make such orders as are necessary for the ends of justice or prevent an abuse of the court process. 19.The Hon. AG argues that it is a fundamental principle that a successful litigant must not be denied the fruits of their judgment. Counsel reiterated that according to the judgment of this court delivered on 6th February, 2025, the Petitioner’s title is void and the suit property is public land housing the Administration Police Headquarters. Counsel urged that the state’s interest in securing the property for the public outweighs the Petitioner’s refusal to sign the mutation forms. He thus asked the court to Direct the Deputy Registrar to execute the documents and ensure the Court’s decree is not rendered useless. He asked that the application for stay be dismissed with costs to allow the Respondents proceed with execution. The Petitioner’s Submissions; 20.In his submissions in support of the application for stay, Counsel for the Petitioner contends that the Petitioner has preferred an appeal against the judgment. That the Respondents may enforce the judgment by transferring the title into their names thus alienating the property and rendering his Appeal nugatory. Counsel asserted that there is need to preserve the substratum of the Appeal. Counsel further submits that the Petitioner stands to suffer substantial loss unless stay is granted, as he will incur a lot of expense re-conveying the property back into his name in the event the Court of Appeal overturns this Court’s judgment. 21.Counsel equally cited Order 42 Rule 6(2) of the Civil Procedure Rules as the law governing stay of execution pending appeal. Counsel submitted that the Petitioner has demonstrated that he is bound to suffer loss unless stay is granted, in terms of the aforementioned re-conveyance expenses. Counsel also explained the Petitioner’s apprehension that the Respondents may further alienate the suit property rendering the appeal an academic exercise. Counsel urged that the 8 months delay is not inordinate. Counsel relied on Halal & Another vs Thornton & Turpin (1963) Ltd (1990) eKLR in support of his submissions. 22.Counsel further argues that the issue of delay is a factual one which ought only have been raised in a replying affidavit, and not Grounds of opposition which are limited to issues of law. Counsel went on to lay the blame for the delay on his erstwhile advocate whom he accused of inaction by failing to bring the application promptly. As for security, Counsel submitted that in non-money decree, the issue of security does not arise. Counsel reiterated that the Respondents continue to occupy and utilise the suit property and will suffer no prejudice if transfer of the title is held in abeyance pending determination of the Appeal. 23.With respect to the Hon. AG’s application, Counsel for the Petitioner reiterated that in view of the Application for stay pending appeal, it is only fair and just that execution be stayed until the Court of Appeal renders itself on the issue raised in the Appeal. Analysis and Determination: 24.Having considered the two applications, the responses thereto and the rival written submissions, the following issues crystalize for determination:-i.Whether the Petitioner meets the conditions for the grant of a stay of execution pending appeal;ii.Whether the Respondents are entitled to an order directing the Deputy Registrar to execute the relevant documents to give effect to the judgment and decree in this suitiii.Who shall bear the costs of this applications? 25.As the Hon. AG’s applications was filed first, ideally, it ought to have been determined first. However, since the second application has implications on the determination of the first application, I find it prudent to first determine the issue of stay of execution pending Appeal, before dealing with the Application for execution of the judgment. Whether the Petitioner meets the conditions for the grant of a of stay of execution pending appeal; 26.The law governing stay of execution pending appeal is anchored in Order 42 Rule 6(1) & (2) of the Civil Procedure Rules, which sets out the principles upon which a Court can exercise its discretion on a party seeking stay of execution as follows:-6.Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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. 27.From the above statutory provision, in determining an application for stay of execution, a court ought to be satisfied of the following:-a.That substantial loss may result to the Applicant unless the order is madeb.That the application has been made without unreasonable delay; andc.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. 28.Applying the aforementioned requirements, this Court will now turn to consider the instant application and determine whether the Petitioner has met the threshold for grant of an order of stay of execution pending appeal. 29.The first requirement is that the court must be satisfied that substantial loss may occur to the applicant unless the order for stay of execution is made herein. In this regard, this Court has to balance the rights of both parties herein. Notably, whereas the Respondents as the Decree Holders have a right to enjoy the fruits of their Judgement, the Petitioner has a corresponding right to pursue his appeal and, in pursuit thereof, to protect the said appeal by seeking stay of execution. 30.Substantial loss is defined in James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR, where the Court held that:-“No doubt, in law, the fact that the process of execution has been put in motion... does not amount to substantial loss… The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.” 31.On the issue of substantial loss, the Petitioner’s case is that execution of the decree will occasion him substantial loss. He contends that if the suit property is transferred to the Respondents, and thereafter his appeal succeeds, he will suffer loss in terms of the time and expense in having the same re-conveyed to him. It is further contended that such eviction would render the intended appeal nugatory. 32.The Respondents, on the other hand, maintain that the application is intended merely to delay the enjoyment of the fruits of their judgment. They assert that litigation costs, including re-conveyance fees, do not constitute substantial loss in the meaning of the law. They contend therefore that the Petitioner has not satisfied the requirement for substantial loss. 33.However, the decree in question is one that directly affects ownership of the suit property, and its execution would result in the Petitioner’s registration over the suit property cancelled. In the event the appeal succeeds after such cancellation, the resultant prejudice to the Petitioner would not be easily reversible. It is not lost on me that the Petitioner would have to resort to a similar process to have the land transferred back to him, and undergo the mutation process to effect the existing subdivision. 34.The loss of ownership and re-conveyance fees are a real and certain loss should the appeal succeed and the land has been transferred to the Respondents who are government agencies. And the wheels turn slowly in this country where no doubt even getting documents signed in government offices could take months even years, thus even the time aspect claimed by the Petitioner is to my understanding a real concern. 35.As to the claim by the Respondents that there is no Appeal filed by the Petitioner to warrant protection of the suit property by way of an order of stay, Order 42 Rule 6(4) further provides that:-(4).For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. 36.From the above extract, an appeal to the Court of Appeal is deemed properly filed upon the filing of a Notice of Appeal. From a perusal of the court file, the Petitioner did on 13th February, 2025 file a Notice of Appeal dated 10th February, 2025 and it was endorsed by the Deputy Registrar of this Court on 3rd March, 2025. This means that contrary to the assertions by the Hon. AG, there is in fact a recognised Appeal and/or intended Appeal capable of being protected by an order of stay of execution. As at the date of the Hon. AG’s Grounds of Opposition, the said Appeal had already been endorsed by the Deputy Registrar of this court. 37.The arguability or possible success of an appeal or intended Appeal, while an important consideration, is not a prerequisite in the grant of an order of stay pending appeal under Order 42 Rule 6. This Court finds that in the unique circumstances of this case, it is imperative to strike a balance between the competing interests and maintain the status quo as regards the registration of the suit property, pending the determination of the appeal. The court is therefore persuaded that substantial loss has been demonstrated. 38.The second requirement is that the application seeking to stay the execution of the judgment and/or decree was made without inordinate delay. The judgment herein was delivered on 6th February, 2025. The Petitioner’s Application for stay of execution was filed on 3rd November, 2025 almost 9 months later. I however note that the Notice of Appeal was duly filed on time on 13th February, 2025 and it cannot, therefore, be said that the intention to appeal was spurred to life by the Respondents’ application seeking execution of the judgment. For this reason, I do find that the delay is not inordinate as the Petitioner has actively moved to ensure his Appeal is on track. The record does show that he applied for typed proceedings, and the same have since been supplied to him. 39.The final requirement is security for the due performance of the decree. The purpose of security as explained in Arun C. Sharma vs Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 Others (2014) eKLR, is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant, and not to punish the judgment debtor. From this explanation, it is clear that the claim that security in non-money decrees does not arise is incorrect. 40.As to the sufficiency of security offered, in Focin Motorcycle Co. Limited vs Ann Wambui Wangui & Anor (2018) eKLR, it was stated that:-“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.” 41.With regard to security, the Petitioner has not proposed any security, nor did he express any willingness to comply with any conditions imposed by the court. Nonetheless, the requirement of security is a matter within the discretion of the court. It is the court that is to determine the manner and form of security to be given. In this case, if the judgment is stayed, the Respondents will be denied registration of the suit property. Nevertheless, the court notes that the Hon. AG has admitted that the suit property is indeed currently used by the Respondents herein. In this instance, since the Respondents are already occupying the suit land, the registration thereof can be stayed until the Appeal is determined. 42.This court is alive to the fact that it must, in the interest of justice, balance the interests of the parties, for while the Respondents are entitled to enjoy the fruits of their judgment, the Petitioner is equally entitled to pursue his appeal to its logical conclusion. As was held in Suleiman vs Amboseli Resort Limited (2004)2 KLR 589, the Court should always opt for the lower rather than the higher risk of injustice. In this regard, granting stay is the lower risk as it will preserve the substratum of the appeal, especially noting the admission that it is the Respondents utilising the suit land. 43.Since the court has discretion on the issue of security, the court deems it appropriate to order that the order of stay shall be conditional upon the Petitioner depositing a sum of KShs. 1,000,000/- in court as security for the performance of the decree. Whether the Respondents are entitled to an order directing the Deputy Registrar to execute the relevant documents to give effect to the judgment and decree in this suit 44.On their part, the Respondents had filed a Notice of Motion Application seeking orders directing the Deputy Registrar to execute the necessary documents to effect the transfer of the suit property as ordered by the court. The said orders are intended to ensure execution of the judgment and decree of this court issued on 6th February, 2025. 45.However, this court has issued an order for stay of execution of the said judgment and resultant decree. For that reason, the orders sought by the Respondents cannot issue in the face of the order of stay issued herein. Who shall bear the costs of this application? 46.Section 27 of the Civil Procedure Act establishes the general principle governing the award of costs in civil proceedings by granting the court discretion to determine by whom and to what extent costs should be paid. Section 27 further prescribes the general rule that costs ordinarily follow the event, meaning the successful party is generally entitled to recover the costs of litigation. The court may however depart from this general rule, where there are justifiable reasons, provided it records its reasons for doing so. 47.In this instance, the Petitioner has successfully prosecuted his application. However, by his said success and owing to the orders issued herein, the Respondents are precluded from enjoying the fruits of their judgment. Therefore, I will not award the Petitioner any costs in this application. Orders:- 48.Accordingly, the court hereby determines the two applications herein as follows:-a.The Respondents’ Notice of Motion dated 30th September, 2025 is hereby dismissed.b.An order be and is hereby issued staying the execution of judgment delivered on 6th February, 2025 and consequential decree pending hearing and determination of the intended appeal.c.As a pre-condition for the grant of the order of stay of execution, the Petitioner herein shall deposit the amount of KShs. 1,000,000/- in court within thirty days from the date ofthis ruling in default, the stay order shall automatically lapse and the orders sought by the Respondents in their application dated 30.09.2025 shall issue without a further reference to the court.d.Each party to bear their own costs of the applications. 49.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 16TH DAY OF JULY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the virtual presence of:-Mr. Bundotich Korir for Petitioner.Mr. Kwame for Respondents.Court Assistant - Laban.