https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4613

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC APPEAL NO. E 055 OF 2026** **COOPERATIVE BANK LIMITED…………………...………APPELLANT/APPLICANT** **VERSUS** **JAMES MOCHAMA KANISA……………………………………...….1ST RESPONDENT** **LAND REGISTRAR KAJIADO NORTH LAND REGISTRY……..2ND RESPONDENT** **SABINA NYANG’AU………………………………………………..….3RD RESPONDENT** **RULING** 1. In the **application** dated **19th June 2026** the Appellant/ Applicant seeks an order of stay of execution of the Judgement and decree of 21st May 2026 by Hon A. N Makau pending the hearing and determination of the Appeal. The application is premised on the grounds that the Appellant has lodged an appeal against the Judgement which was delivered in the following terms ; 2. **A declaration that the Plaintiff James Mochama Kanisa is the sole lawful and rightful registered proprietor of L.R. No. Ngong/Ngong/26048 and L.R. No. Ngong/Ngong/26049.** 3. **An order cancelling and nullifying the charge registered in favor of the 1st Defendant over L.R. No. Ngong/Ngong/26048 and L.R. No. Ngong/Ngong/26049 the same having been registered without the knowledge, consent, or participation of the Plaintiff and having based entirely on forged documents.** 4. **An order directing the 1st Defendant to forthwith release and return to the Plaintiff the original title deeds for L.R. No. Ngong/Ngong/26048 and L.R. No. Ngong/Ngong/26049 unconditionally.** 5. **An order directing the 2nd Defendant (Land Registrar, Kajiado North and Registry) to cancel registration of the fraudulent charge and to reinstate the Plaintiff as the unencumbered registered proprietor of both suit properties on the register and to issue fresh title deeds where necessary.** 6. **A permanent injunction restraining the 1st, 2nd and 3rd Defendants, their servants, employees, agents, auctioneers or any persons acting through or under them, from in any manner interfering with the Plaintiff’s quiet possession, use and enjoyment of L.R. No. Ngong/Ngong/26048 and L.R. No. Ngong/Ngong/26049, and in particular from advertising, auctioning, selling, transferring or otherwise alienating the said properties.** 7. **The costs of the suit against the 1st and 3rd Defendants.** 8. The Appellant is aggrieved by the said Judgement and has lodged a Memorandum of Appeal before this court. The Appellant avers that if stay is not granted, the 2nd Respondent will cancel registration of the charge which would occasion substantial loss as the Appellant is still owed Ksh 3,097,012.02 as of 16th November 2022. 9. The application is supported by the affidavit of Jackson Oire who has deposed that stay of execution granted by the trial court lapses on 21st June 2026. He states that the court is apprehensive that if the Judgement is executed and charge cancelled the bank will suffer substantial loss. 10. The Respondent in his Replying Affidavit states that the bank disbursed the loan to his estranged wife and not himself. He avers that he has suffered from the fraudulent schemes of the bank and his estranged wife and should not be deprived of his property any longer. 11. Counsels argued the application orally. Counsel for the Appellant Mr Wilson submits that the application has been filed without undue delay and should be allowed. He states that the bank is ready to offer any security. Counsel for the Respondent Mr Onenga urges the court not to allow the application as the magistrates court had found that the charge was procured fraudulently. 12. The principles that should guide a court in an application of this nature are clearly spelled out in **Order 42 rule 6(2)** of the ***Civil Procedure Rules*** which provides as follows: ***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.*** 1. In **Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365,** the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the ***Civil Procedure Rules*** is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. 2. On sufficient cause it does not fall upon this court to assess the merits of the appeal. The appellants are entitled in exercise of their right to access court to prosecute their appeal in the next level of court. If an order of stay is not granted the situation that was described in the case of**Kenya Airports Authority vs. Mitu-Bell Welfare Society & Another (2014) eKLR**, might come to pass. In this case the court held that: **“The nugatory limb is meant to obviate the spectre of a meritorious appeal, when successful, being rendered academic the apprehended harm, loss or prejudice having come to pass in the intervening period. Our stay of execution jurisdiction is meant to avoid such defeatist eventualities in deserving cases.”** **Tabro** 1. **Section 1A** and **1B of the Civil Procedure Act** places on the courts a responsibility to give effect to the overriding objectives which include; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. This calls upon the court to not only consider whether the well settled principles of grant of stay have been met, but to delve deeper to determine what the ends of justice would require in each circumstance. 2. The overriding objectives of the **Civil Procedure Act** especially as it relates to the just determination of proceedings require the court to ensure that the ends of justice are met for both parties. This was clearly spelt out in the case of **Transporters Ltd. vs. Absalom Dova Lumbasi [2012] eKLR**, thus: **“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”** 1. Taking into the account the foregoing and balancing the rights of both parties the application is allowed in the following terms; 2. **Stay of Execution is granted pending the hearing and determination of the appeal.** 3. **The Appellant is to present a bankers bond of Ksh 500000 in court or deposit Kshs 500000 in court within 30 days of this ruling.** 4. **That the appeal should be filed within 60 days.** 5. **That in default of (b) and (c) the order for stay is to lapse.** 6. **Costs shall abide the outcome of the appeal.** **Dated, Signed and Delivered virtually at Kajiado this 16th day of July 2026.** **JUDY OMANGE** **JUDGE.** **IN THE PRESENCE OF:** Ms. Achila for Mr. Onenga for 1st Respondent. Mr. Wilson for Applicant. Peter – Court Assistant.