https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4290

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA** **ELC LAND APPEAL NO. E004 OF 2026** **DAVID EMOIT CHESEBA ……………...……….....…… APPELLANT** **VERSUS** **TRUPHENA LUCY EMOIT …..……………..…… 1ST RESPONDENT** **CARO TOTO EMOIT …………………………… 2ND RESPONDENT** **RULING** The Appellant brought the application dated 25/2/2026 seeking stay of execution of the judgment delivered in Sirisia SPM ELC Case No. E017 of 2023 pending hearing and determination of this appeal. The application was made on grounds that the judgment ordered that the Appellant was to be evicted from the suit land after 30 days which lapsed on 5/3/2026 and he was apprehensive that he would be evicted from the suit land. The Appellant swore the supporting affidavit in which he deponed that the suit land was matrimonial property which was initially registered in their late father’s name and that no succession proceedings were filed in respect to his estate. The 1st Respondent swore the replying affidavit and annexed a copy of the judgment. She averred that the Appellant had concealed material facts from the court and added that no order was made in the judgment for eviction of the Appellant upon the lapse of the 30 days. She pointed out that in the judgment, the Bungoma District land Registrar was directed to remove the caution which the Appellant had placed against the land known as North Malakisi/South Wamono/252 (the suit land) and restrained the Appellant from interfering with the Respondents’ possession of that land. She averred that the Appellant had come to court with unclean hands and was in contempt of the court orders since he had trespassed on the suit land and cultivated crops on the land. The Respondent contended that the suit land was not the Appellant’s matrimonial property and that it was transferred to the Respondents when their father was alive. The application was canvassed through written submissions. The Appellant relied on Order 42 Rule 6 of the Civil Procedure Rules and urged that he would suffer substantial loss and stood to lose the suit land. He added that the application was filed without delay and expressed willingness to furnish security. The Respondent also relied on Order 42 Rule 6 of Civil Procedure Rules on the necessary ingredients that an Appellant needs to prove. She reiterated that no order for eviction was issued by the trial court because the Appellant did not reside on the suit land and was only planting food crops on it. She pointed out that they are the registered owners of the suit land and had a right to enjoy the fruits of the judgment. They argued that the evidence tendered during the trial showed that part of the suit land had been sold to a church and the Respondents sold the remainder to a third party in the presence of their father. They expressed their desire to complete the transaction with the third party. The issue for consideration is whether the court should stay the execution of the decree from the trial court. The Respondents are the Appellant’s sisters. The court has looked at the judgment delivered by the trial court and agrees with the Respondents that no order for eviction of the Appellant was issued by the trial court. The Appellant has failed to demonstrate that he will suffer substantial loss. The court declines to grant the orders sought in the application dated 25/2/2026. The Respondents are awarded the costs of the application. Delivered virtually at Bungoma this 2nd day of July 2026. **K. BOR** **JUDGE** **In the presence of: -** Mr. Paul Milimo for the Respondents Court Assistants-Bett & Metrine No appearance for the Appellant