https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4644

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ITEN** **ELCC NO. 1 OF 2022 (OS)** **REUBEN K CHELAGAT……………………… PLAINTIFF/RESPONDENT** **VERSUS** **PAULINA KOBILO KIPKELWON.........…… DEFENDANT/APPLICANT** **RULING** 1. **Order 42 Rule 6(1) and (2)** of the Civil Procedure Rules provide that: **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 sub-rule (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;** **(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.”** Emphasis added. 1. It is clear from the above that an application for stay of execution pending appeal must satisfy the following grounds; 2. **Sufficient cause** 3. **Substantial loss** 4. **Offer of security** 5. **No unreasonable delay** 6. The above guidelines were reiterated by the court of appeal in the case of **VISHRAM HALAI V. THORNTON & TURPIN LTD (1963) LTD 1990 eKLR 365 [1990 KECA 65 (KLR)** as follows; **“Thus, the superior Court’s discretion is fettered by three conditions. Firstly, the applicant must establish a sufficient cause; secondly, the Court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly, the applicant must furnish security. The application must ofcourse be made without unreasonable delay.”** 1. Proof of substantial loss has been said to be the “**cornerstone”** of such an application. In the case of **KENYA SHELL LTD V. BENJAMIN KIBIRU & ANOTHER 1986 KLR 410 PLATT Ag J.A** (as he then was) said the following; **“It is usually a good rule to see if Order XL1 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting 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.”** 1. The dispute between **PAULINA KOBILO KIPKELWON** (the Applicant herein) and **REUBEN K. CHELAGAT** (the Respondent herein) over a portion of land measuring 1¼ acre out of the land parcel No. **BARINGO/KAPROPITA/308** (the suit land) was heard and determined by **WAITHAKA J** vide a Judgment delivered on 22nd February 2023 in favour of the Respondent. The Applicant, being aggrieved by that Judgment, filed a Notice of Appeal dated 26th May 2023. 2. The Applicant has now approached this court vide her Notice of Motion dated 24th October 2025 and premised under the provisions of **Sections 1A, 1B, 3A, 63(e)** and **80** of the Civil Procedure Act, **Order 42 Rule 6** and **Order 51 Rule 1** of the Civil Procedure Rules and **Article 159 (2)** of the Constitution. She seeks the following orders; 3. **Spent** 4. **This Honourable Court be pleased to stay execution of the orders issued herein pending the hearing and determination of the appeal.** 5. **Costs of this application be provided for.** 6. The motion is based on the grounds set out therein and supported by the Applicant’s affidavit of even date. 7. The gist of the motion is that being dissatisfied with the Judgment delivered herein on 22nd February, 2023 by **WAITHAKA J**, the Applicant filed an appeal which is arguable with high probability of success. That the Respondent is likely to amend the ownership of the suit land pending the appeal and if the order of stay is not granted, the appeal will be rendered nugatory. The Applicant will also suffer irreparable damages as she may lose the suit land and also finances in the form of costs of this suit. 8. The Respondent will not suffer any prejudice and it is in the interest of equity that this Motion be allowed. 9. And although the Applicant made reference to some documents being copy of the impugned Judgment, a copy of the Notice of Appeal and a letter requesting proceedings as annexures **PKK 1** to **PKK – 3,** the said documents were not annexed. However, nothing really turns on that because those documents are in the file and the court has access to them. 10. The motion is opposed and the Respondent filed a replying affidavit dated 19th November 2025. 11. He describes the Motion as misconceived since it was filed by Counsel who is not on record. That this Judgment was delivered seven years ago on 25th October 2018 and there is no valid appeal. That this matter has been through several proceedings and this motion is only meant to frustrate the execution process and is an abuse of the court process. Litigation must come to an end. 12. The court directed that the motion be canvassed by way of written submissions. However, only **MS. CHESARO** instructed by the firm of **J. J. CHESARO & COMPANY ADVOCATES** for the Applicant filed her submission. **MS. SALIM** instructed by the firm of **MANANI, LILAN MWETICH & COMPANY ADVOCATES** for the Respondent informed the court on 29th April 2026 that she would only be relying on the Respondent’s replying affidavit. 13. I have considered the Motion, the rival affidavits and the submissions by **MS. CHESARO**. 14. At the commencement of this ruling, I set out the applicable law and the precedents to guide this court. I need not rehash them. All I need to add is that that the Applicant was required to satisfy all the requirements set out above. I will however point out to the Respondent that the Judgment sought to be appealed was delivered on 22nd February 2023 and not on 25th October 2018 as averred in paragraph 5 of his replying affidavit. 15. The record shows that there are two Notices of Appeal filed herein all in respect to the Judgment delivered by **WAITHAKA J** on 22nd February 2023. The first Notice of Appeal is dated 29th May 2023 and was filed on 29th May 2023. That one was filed by the firm of **MS. WABOMBA MASINDE & ASSOCIATES ADVOCATES** who were then acting for the Applicant. The second Notice of Appeal is dated 10th October 2025 and was filed on 27th October 2025 by the firm of **J. J. CHESARO & COMPANY ADVOCATES** after they had been allowed to come on record for the Applicant. One of the issues raised by the Respondent is whether there is in fact a proper Notice of Appeal filed. That shall be the starting point. 16. Part IV of the Court of Appeal Rules 2022 provides for the lodging of civil appeals to the court of Appeal from this court. Rule 77 (1) provides that a person who desires to appeal shall give notice in writing to be lodged with the Registrar of the Superior Court. Sub-rule (2) provides that; “**Each notice under sub-rule (1) shall, subject to rules 84 and 97, be lodged within fourteen days after the date of the decision against the decisions for which the appeal is lodged.”** 1. Procedurally, therefore, the Applicant was required to lodge a Notice of Appeal within 14 days from 22nd February 2023 when the Judgment sought to be appealed was delivered. From the record, both Notices of Appeal were filed well beyond the 14 days’ statutory period as provided and there is nothing to show that any extension of time was granted. Without the proper Notice of Appeal, there can be no basis upon which an application for stay of execution pending appeal can be granted. It is that Notice of Appeal which will clothe this court with the jurisdiction to grant the orders of stay of execution pending appeal. And even as the court considers this Motion, there is no evidence to show that any appeal was subsequently filed. 2. On that basis alone, this Motion must collapse. Without any appeal having been filed against the Judgment delivered on 22nd February 2023, there is no justification for granting an order of stay of execution. There is no sufficient cause. 3. With regard to proof of “**substantial loss**” the Applicant has pleaded in ground No. IV of the Motion thus; **IV “That if the stay of execution is not granted, the outcome of the applicant’s appeal will be rendered nugatory and the applicant will suffer irreparable damages in that she stands to lose the suit property referenced as BARINGO/KAPROPITA/308 and further loss of finances in form of costs of suits”.** 1. The above has been repeated in paragraphs 8 and 11 of her supporting affidavit. Substantial loss, as is clear from the case of **KENYA SHELL LTD V. BENJAMIN KIBIRU** (Supra) is the **“cornerstone**” of such an application. And in **MACHIRA & COMPANY ADVOCATES V. EAST AFRICAN STANDARD (NO. 2) 2002 2KLR 63**, it was held that; **“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars ….… Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay...”** 1. Even assuming, for purposes of argument, that irreparable losses and substantial loss are one and the same thing, it cannot be possible that the Applicant will “**lose the suit property BARINGO/KAPROPITA/308 to the Respondent**” if the order sought is not granted as pleaded by the Applicant. The suit land, as is clear from the register, measures 2.0 hectares (4.942 acres). I notice from the Register that the acreage was altered from 5.0 hectares to 2.0 hectares. The certificate of confirmed grant through which the suit land was transmitted to the Applicant describes it a measuring 1.90 hectares (4.695 acres). Vide the Judgment delivered on 22nd February 2023, the Respondent was awarded only 1¼ acres. He was not awarded the whole of the suit land which measures over 4 acres. Therefore, there is no way that the Applicant will lose the whole suit land as she would like this court to believe. It would be a different case if there was evidence that the Applicant stands to lose the whole suit land thus rendering him destitute if the order of stay of execution pending appeal is not granted. And with regard to the averment in paragraph 11 of the supporting affidavit that the Applicant will “**further lose finances in the form of costs of the suit**” if the order of stay of execution is not granted, there is nothing to suggest that the Respondent is so impecunious as to be unable to meet the Applicant’s costs should the appeal succeed. 2. The Applicant has failed to satisfy the requirement of establishing “**Substantial loss**”. 3. The applicant was also required to approach this court “**without unreasonable delay**”. 4. The Judgment sought to be appealed was delivered on 22nd February 2023. This application is dated 24th October 2025 and was filed on 27th October 2025. That was 2 years and 8 months later, a delay that is clearly “**unreasonable**” The Applicant has not given an explanation in her Motion or supporting affidavit as to why it took her that long to file this Motion. The explanation has, instead, come from the submissions of her counsel. At page 1 of those submissions, counsel has states as follows:- “**The timeline for filing the Notice of Appeal and this Application was caused by the fact that the Applicant was seeking legal advice from other counsels and it happen to the Applicant giving instructions to the firm of J. J. Chesaro & Company Advocates as the Appellant’s former advocates failed to act on the applicant’s file after Judgment so as to file this application and the appeal despite instruction given”.** 1. The Applicant’s Counsel then proceeds to add at page 3 of her submissions that; “**There was a delay in filing this application occasioned by the advocates who represented the applicant in the trial court MS. KIBET LEMETO & CO. ADVOCATES who never followed up this matte despite the applicant instructions. And for that omission the applicant opted to change/appoint another firm M/S CHESARO & COMPANY ADVOCATES who immediately acted and filed the Notice of Appeal dated 10th October 2025 on the same day. The applicant could not visit the advocate’s office to ensure the position of her case as she had given the instructions to the advocate to appeal and also seek for stay order of execution after Judgment at Eldoret.** **Frequent visits to the advocates offices were not possible as she could be subjected to hardship as fare/travelling costs could be expensive.** **She then made a visit around September 2025 when she discovered the advocate had not acted on her file. She made a visit to her former Advocates after Judgment to the Advocates office was too expensive considering that she lives on the suit property situated at Kapsoo village at Kabarnet Baringo County and the advocate offices are located at Eldoret Uasin Gishu County.”** 1. Counsel then goes on to cite the case of **NICHOLAS KIPTOO ARAP KORIR SALAT V. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 7 OTHERS 2014 eKLR** which lays down the principles of extension of time. She then adds that “**the delay in filing this application is excusable as a result of procedural technicality**”. 2. As already stated above, the Applicant did not raise the above issues in her supporting evidence. Instead, it is her counsel who has raised them in her submissions. It is well settled that submissions are not evidence. In the case of **DANIEL TOROITICH ARAP MOI V. MWANGI STEPHEN MURIITHI & ANOTHER 2014 eKLR**, the court of Appeal state as follows; “**Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What happened in submission could not come to his aid. Such a cause only militates against the law and we are unable to countenance it. Submissions are generally parties ‘marketing language’ each side endeavouring to convince the court that it’s case is the better one.** **Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”** 1. The averments in the submissions by counsel for the Applicant should have been made in the supporting affidavit because that is the only other way, other than orally in court on oath or by documents in which evidence is adduced. Not through submissions as is now clear from the precedent cited above. Nowhere in her affidavit dated 24th October 2025 has the Applicant explained why it took her 2 years and 8 months to file this motion. And even if this court were to believe that the delay was caused by the Applicant’s previous counsel **KIBET LEMETO & COMPANY ADVOCATES**, litigation, as is always said, belongs to the party. It does not belong to the party’s advocate. The moment the Judgment was delivered on 22nd February 2023, it was the duty of the Applicant to file a Notice of Appeal within the 14 days’ statutory period and thereafter file this motion “**without unreasonable delay**”. And if her then Counsel did not act in accordance with her instructions, she did not have to wait for 2 years 8 months to file this motion. 2. The Applicant has pleaded in ground VI of her motion that “**the grant of orders sought will not occasion the respondent any prejudices incapable of remedying by way of damages.”** The fact is that the Respondent has a Judgment in his favour dating back to 22nd February 2023. He is entitled to enjoy the benefits arising therefrom without unreasonable delay. It cannot be “**In the interest of equity that this motion be granted**” as the Applicant has pleaded in paragraph 12 of her supporting affidavit. To the contrary, equity abhors delay or put the other way, “**equity aids the vigilant**” or “**delay defeats equity**” the Constitution abhors delay and **Article 159 (2) (b)** is specific that: “**Justice shall not be delayed.”** 1. On the other hand, among the overriding objectives of the court as set out in Section 1B (1) (d) of the Civil Procedure Act is “**the timely disposal of the proceedings**.” It cannot therefore be correct for the Applicant to argue that the Respondent will not be prejudiced if the orders sought are granted. He certainly will. 2. With regard to the Applicant’s averment in paragraph 10 of her supporting affidavit “**that the appeal has high chances of success**,” the proposed appeal is against a Judgment of a court of concurrent jurisdiction though presided over by another Judge. It cannot be within the Jurisdiction of this court to gauge the success or otherwise of an appeal lodged against the Judgment of another Judge no matter how tempting it may appear and this court is not about to accept the invitation to take that route. In any event, it is not among the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules. 3. Finally, the Applicant was required to offer security or at least demonstrate that she is ready and willing to abide by any terms which this court may impose for the grant of an order of stay of execution pending appeal. No such offer has been made. As was held in the case of **WYCLIFFE SIKUKU WALUSAKA V. PHILIP KAITA WEKESA 2020 eKLR**, such offer of security. **“ ……. must of course come from the Applicant himself as a sign of good faith to demonstrate that the application for stay of execution pending appeal is being pursued in the interest of justice and not merely as a decoy to obstruct and delay the Respondent’s right to enjoy the fruits of his Judgment”.** 1. In the absence of any offer of security from the Applicant, this court can only conclude that this motion is a knee jerk reaction after noticing that the Respondent is now pursuing the execution process by applying for an order that the Deputy Registrar do execute the conveyance instruments in favour of the Respondent. This motion has not therefore been filed in good faith in the interest of Justice. The Applicant must be informed that whereas she has the right to challenge the Judgment herein by way of an appeal, the Respondent also has a corresponding right to enjoy the fruits of his Judgment. And that right can only be stayed on the basis of good reasons and sufficient cause. I see none in the circumstances of this case. 2. Ultimately therefore and having considered the Notice of Motion dated 24th October 2025, this court makes the following disposal orders: 3. The motion is devoid of merits and is dismissed. 4. Costs to the Respondent. **BOAZ N. OLAO** **JUDGE** **22ND JULY 2026** **Ruling dated, signed and delivered on this 22nd day of July, 2026 by way of electronic mail as was advised to the parties on 29th April 2026.** **BOAZ N. OLAO** **JUDGE** **22ND JULY 2026**