https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3096

Rono v Rotich & 2 others (Environment and Land Case 56 of 2020) [2026] KEELC 3096 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3096 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 56 of 2020 CK Yano, J May 21, 2026 Between Geoffrey Kiptarbei Rono Plaintiff and Johana Komen Rotich 1st Defendant Milka Jepkirwa Korir 2nd Defendant Kenya Commercial Bank 3rd Defendant Ruling 1.The 2nd Defendant/Applicant filed a Notice of Motion Application dated 23rd January, 2026 seeking the following orders:-1.Spent2.Spent3.That this court be pleased to grant stay of execution of judgment delivered in Eldoret ELC No. 56 of 2020 on 17th December, 2025 and all the consequential orders therein pending the hearing and determination of the intended appeal to the Court of Appeal.4.Such other orders be made as are just and expedient in the interest of justice.5.Costs of this application be provided for. 2.The application is supported by the 2nd Defendant’s affidavit sworn on the same date. The 2nd Defendant averred that she is the registered proprietor of Eldoret Municipality/Block 6/270, having purchased the property from the 1st Defendant upon conducting due diligence. She claimed that she obtained good title thereto and charged it to the Interested Party and even developed it. That this court however delivered judgment in this matter on 17th December, 2025 adversely against her and the 3rd Defendant, and being aggrieved by it, she has lodged an appeal. 3.The 2nd Defendant explained that she stands to suffer substantial damage since the Plaintiff may deal adversely with the land including sale, transfer, lease or mortgage to third parties, which would affect the substratum of the appeal and render it nugatory. She deponed that the appeal raises triable issues with high chances of success. According to the 2nd Defendant, the Plaintiff will suffer no prejudice if the orders sought are granted, thus it is in the interest of justice that the judgment be stayed. 4.Upon service of the Application, the Plaintiff filed a Replying Affidavit dated 3rd February, 2026. The Plaintiff deponed that the instant application is bad in law, raises no triable issues, is frivolous, vexatious, scandalous and an abuse of the court process, thus should be dismissed in limine. The Plaintiff deponed that the 2nd Defendant’s Application does not meet the threshold for granting orders of stay of execution as set out at Order 42 Rule 6 of the Civil Procedure Rules, and therefore does not warrant the exercise of the Court’s discretion in her favour. He asserts that execution is a lawful process, and the instant application is meant to deny him the fruits of the judgment. He concluded by stating that where fraud has been established against a party, they cannot enjoy protection by way of stay of execution. 5.When the matter came up on 2nd March, 2026, the Interested Party informed the court that it would not be opposing the instant application. Submissions: 6.The application was canvassed by way of written submissions. The 2nd Defendant/Applicant filed submissions in support thereof dated 20th April, 2026. The Plaintiff’s submissions opposing the application are dated 8th April, 2026. The 2nd Defendant/Applicant’s Submissions; 7.Counsel submitted that the applicable provision is Order 42 Rule 6 of the Civil Procedure Rules 2010, which sets out the conditions for grant of the stay order. Counsel submitted that the 2nd Defendant had satisfied all three requirements in the present case. Counsel cited Wilson v Church (No 2) (1879) 12 Ch D 454, Butt v Rent Restriction Tribunal Civil Application No. NAI 6 of 1979, and Kenya Shell Limited v Benjamin Karuga Kibiru & Another, Civil Application No. NAI 97 of 1986. 8.On substantial loss, Counsel submitted that if execution proceeds before the appeal is heard and determined, the 2nd Defendant will be evicted from the property, and her title deed cancelled, which cannot be reversed without court intervention. Counsel submitted that the charge registered in favour of the Interested Party will be invalidated, exposing the 2nd Defendant to the full force of the loan obligation. Counsel argued that the said consequences are irreversible, making the appeal not only difficult but illusory. Counsel urged that the 2nd Defendant stands to suffer not merely speculative but concrete and imminent financial loss. Counsel relied on James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKLR RWW v EKW (2019) KEHC 6523 and Stanley Kagethe Kinyanjui v Tony Ketter & 5 Others (2013) eKLR. 9.As to the timeline, Counsel submitted that the Judgment was delivered on 17th December, 2025 while the Notice of Appeal was filed on 18th December 2025, a day later, and the present Application followed shortly thereafter. Counsel argued that this does not constitute inordinate delay. Counsel cited Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another (2014) eKLR and Jaber Mohsen Ali v Priscillah Boit & Another (2014) eKLR. 10.On the issue of security, Counsel submitted that the subject of the application is not a money decree, thus the nature of security should be different. Counsel proposed an undertaking that the 2nd Defendant will not further encumber, alienate or otherwise deal with the suit property pending hearing and determination of the appeal, alongside such other conditions the Court may set. Counsel also stated that the suit property is itself a form of security, as it is fixed, identifiable and cannot be removed. That being currently charged to the Interested Party, the Plaintiff cannot derive immediate commercial benefit from it even if he executed the decree. He added that the court has discretion to grant a stay without demanding security, and relied on Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others (2014) KEHC 2430. 11.Counsel also submitted that the intended appeal raises triable issues and he referred to the Memorandum of Appeal annexed to the Supporting Affidavit. That it would be a miscarriage of justice if the intended appeal is rendered nugatory before the Court of Appeal pronounces itself on the issues raised therein. He contended that the balance of convenience decisively favours the grant of a stay, and cited Erinford Properties Limited v Cheshire County Council (1974)2 All ER 448 in support of his arguments. 12.In response to the Plaintiff’s argument on the failure to annex the decree or judgment, Counsel submitted that it is hyper-technical and contrary to the overriding objectives. That in any event, the court has the certified proceedings and judgment in its record. Counsel distinguished the cases of Gulam Hussein Jivangi v Jivangi & Another (1929-30 KLR 44) and Civicum Limited v Kirowatt Limited [2015] KEHC 3124 (KLR) cited by the Plaintiff. He argued that they dealt with applications for review where the formal order or decree is necessary, whereas in an application for stay pending appeal, the court does not require the decree to be annexed. 13.Counsel cited Article 159(2)(d) of the Constitution on administering justice without undue regard to procedural technicalities. Counsel acknowledged the Plaintiff’s right to the fruits of his judgment, but argued that there is need to ensure the right of an appellant to pursue an appeal without the subject matter being destroyed. Counsel argued that the Plaintiff has not demonstrated that he will suffer any prejudice if stay is granted as he will still have his judgment, and he will be protected by the security this court orders. Counsel asked the Court to grant the orders sought with costs. The Plaintiff/Respondent’s Submissions; 14.Counsel for the Plaintiff on his part equally cited Order 42 Rule 6, on the conditions to be met in an application for stay of execution. On substantial loss, Counsel submitted that the 2nd Defendant has neither demonstrated how she will suffer substantial loss, nor shown that the Plaintiff has commenced execution of the decree. Counsel admitted that the land is still charged to the Interested Party, but that there is no evidence the Interested Party has requested for alternative security in compliance with the judgment. 15.Counsel submitted that there is no proof that the Plaintiff had commenced anything that will change the state of the land. To bolster his arguments, Counsel cited James Wangalwa & Another v Agnes Naliaka Cheseto (Supra), Silverstein v Chesoni (2002)1 KLR 867, Mukuma v Abuoga, Stanley Kengethe Kinyanjui v Tony Ketter & 5 Others (2013) eKLR, Hamisi Juma Mbaya v Amekecho Mbaya (2018) eKLR and Butt v Rent Restriction Tribunal (Supra) among other cases. 16.Counsel pointed out that the title to the suit land is in the Interested Party’s custody and the land registry records show that it is still encumbered, thus the Plaintiff cannot deal with it before it is discharged. Counsel further submitted that no notice has been issued to the Defendant under Section 152E of the Land Laws (Amendment) Act No. 28 of 2016 demonstrating that the Plaintiff has commenced the eviction process. Counsel therefore argued that the 2nd Defendant has not established that she will suffer substantial loss to warrant the order of stay of execution. 17.Counsel also submitted that the application had been brought 36 days after the delivery of judgment, which according to him constitutes inordinate delay that was not explained. Counsel relied on Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another (2014) eKLR and Jaber Mohsen Ali & Another v Priscillah Boit (Supra). Counsel submitted that the 2nd Defendant had neither tendered any security nor shown any willingness to comply with the directions that would be given by the court. Counsel argued that the 2nd Defendant had thus failed on this limb, and he relied on Mabu Commodities Limited v Nakitende (Miscellaneous Application No. 530 of 2020) UGHCCD 43. 18.Counsel further submitted that the court became functus officio upon delivery of the judgment, therefore the 2nd Defendant ought to have attached the judgment/decree she intended to appeal. Counsel claimed that the failure to attach the judgment/decree renders the present application fatally defective, which defect cannot be cured by Sections 1A and 1B of the Civil Procedure Act, or Article 159 of the Constitution. He relied on Gulam Hussein Jivangi v Jivangi & Another (1929 - 30) KLR 44 and Civicum v Kirowatt Limited (2015) KEHC 3124 (KLR). Counsel concluded that the 2nd Defendant had not met the threshold for stay and asked that the application be dismissed. Analysis and Determination: 19.This court has considered the present application, the replying affidavit and the submissions filed by counsel on behalf of their respective clients. The only issues for determination are:-i.Whether the Court should exercise its jurisdiction to grant the order of staying the execution of the judgment delivered on 17th December, 2025; andii.Who shall bear the costs of the Application? a. Whether the Court should exercise its jurisdiction to grant the order of staying the execution of the judgment delivered on 17th December, 2025 20.The law as regards stay of execution is found at Order 42 Rule 6 of the Civil procedure Rules, which provides that:-SUBPARA 6.Stay in case of appeal [Order 42, rule 6]SUBPARA (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.SUBPARA (2)No order for stay of execution shall be made under subrule (1) unless—SUBPARA (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; andSUBPARA (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. 21.From the above extract, the court has discretion on whether or not to grant a stay. However, before a Court can exercise its discretion to grant an order of stay, the following conditions must be established:-a.Substantial loss may result to the applicant unless the order is made.b.The application has been made without unreasonable delay, andc.Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given 22.It is on this basis that the Court hereby proceeds to determine whether the above mentioned conditions have been met. The first condition is that the applicant must demonstrate that she is likely to suffer substantial loss if the order of stay is not granted. Substantial loss has repeatedly been held to be the core to granting a stay order pending Appeal. Substantial loss is more often than not assessed by the totality of the consequences an applicant is likely to suffer if stay of execution is not granted. 23.The requirement of for substantial loss was explained in the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2012) KEHC 1094 (KLR), where the court held as follows:-“11.No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:‘…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.’With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal.” 24.Going by the above authority, it is clear that demonstrating what substantial loss is likely to be suffered, is core to granting a stay order pending Appeal. Following the principle that he who alleges must prove, the onus of proving substantial loss is on the party seeking the order of stay. It is thus not enough to allege that one stands to suffer substantial loss. The Applicant must show she will be totally ruined in relation to the appeal if the order of stay is not granted. The 2nd Defendant was bound to place before the court real and cogent evidence to show that she stood a risk of suffering substantial loss moneywise or otherwise, and therefore grant the stay. 25.The 2nd Defendant claims that she risks being physically evicted from the property she has developed and occupied, and has also expressed concerns that her title deed will be cancelled. In the 2nd Defendant’s submissions, it has been argued that a title that has been cancelled cannot be unilaterally restored. Further, that any reversal of that cancellation after a successful appeal will require court intervention. Finally, it was also urged that the charge registered in favour of the Interested Party over the suit property will be invalidated exposing her to financial risk. 26.I have taken time to peruse the judgment delivered on 17th December, 2025. It is true that the court did direct the cancellation of the 2nd Defendant’s title over the suit property and for registration of the land in favour of the Plaintiff. The court also ordered his eviction from the suit land. Therefore, the risk of cancellation and eviction is real. In addition, the court in its judgment found that the said charge registered in favour of the Interested Party cannot stand. The Court ordered that it be discharged and the title released to the Land Registrar for cancellation. The Court went further to state that the Interested Party was at liberty to pursue the 2nd Defendant for the balance of the loan. 27.Indeed, there is no evidence that the Interested Party has commenced the loan recovery process. However, there is no doubt that once the title is cancelled the loan will no longer be secured and there will be nothing to stop the Interested Party from pursuing the 2nd Defendant for the balance of the loan. 28.This Court is cognizant of the fact that mere financial burden occasioned by a judgment does not constitute substantial loss for purposes of grant of an order of stay of execution. However, the financial loss anticipated herein, coupled with the cancellation of the title and eviction ordered by the court create such a state of affairs that are unique enough as to constitute substantial loss. 29.The Applicant has therefore discharged the burden of proof that she is likely to suffer substantial loss. I am of the view that there is need to order stay so that the appeal is not rendered nugatory. 30.Secondly, the applicant must demonstrate that the application for stay of execution was made without unreasonable delay. In the case of Jaber Mohsen Ali & Another v Priscillah Boit & Another (2012) eKLR, the Court explained the concept of undue delay as follows:-“11.… The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.” 31.The judgment in this suit was delivered on 17th December, 2025 while the present application was filed on 23rd January, 2026. There is only 37 days between the judgment and the filing of the present application. To my mind, noting that this was in December, during the festive season and most law firms close their businesses for a period, does not constitute an inordinate delay. 32.Thirdly, is the condition of payment of security for the due performance of the decree. The requirement of security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules is premised on the principle that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails. 33.The 2nd Defendant did not expressly mention the issue of security in her affidavit. However, the Court in James Wangalwa v Agnes Naliaka Cheseto (Supra), while dealing with a similar scenario where an applicant had not offered security, stated that:-“18.I agree with the respondent that the Applicants have not offered or proposed any security for the due performance of the decree of the lower court. This should be done as a sign of good faith that the Applicant is ready and willing to commit to giving security. But my reading of order 42 rule 6(2) (b) of the CPR reveals that, it is the court that orders the kind of security the applicant should give as may ultimately be binding on the applicant. This modeling of the law is to ensure the discretion of the court is not fettered.” 34.Moreover in the 2nd Defendant’s Submissions, Counsel proposed the following by way of security:- An undertaking by the 2nd Defendant not to further encumber, alienate, transfer, lease or otherwise deal with the suit property pending the hearing and determination of the appeal; Such other conditions as this Honourable Court may consider appropriate in the circumstances. the suit property is itself a form of security. 35.As to what constitutes sufficient security, I associate myself with the holding in Mwaura Karuga T/A Limit Enterprises v Kenya Bus Services Ltd & 4 Others (2015) eKLR, where it was said:-“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.” 36.Similarly, in Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another (2018) KEHC 8358 (KLR), the court explained that:-“14.The second consideration is security. The applicant has deponed that he is ready to provide security. It is the Court which determines the security upon ordering stay to ensure the due performance of the obligations by the applicant as to costs and to satisfy the decree. It is therefore sufficient to depose that he is ready to provide security. The applicant has submitted that he has ability to provide security as will be ordered by the Court as it is a company with substantial investments in the County and once called upon by the Court will avail such security…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.” 37.Notably, the suit property is still encumbered owing to the charge still registered in favour of the Interested Party. As a result, the land cannot be used as security because the title thereto is still in the custody of the Interested Party. For that reason, this court will first give the condition that the Land Registrar register an inhibition against the register of the title to the suit land restraining any dealings on the suit property pending determination of the appeal. The Applicant will cause this ruling and/or order emanating therefrom to be served on the Land Registrar, to ensure that the said inhibition is registered within 30 days from the date hereof. 38.In addition, although this is not a money decree, the court did condemn the Applicant to pay general damages of KShs. 2,000,000/-. Therefore, aside from the above inhibition, the Applicant will deposit the full amount of the general damages awarded, being KShs. 2,000,000/- in a joint interest earning Account held by the Advocates of the 2nd Defendant and the Plaintiff herein within 30 days from the date hereof. b. Who shall bear the costs of the Application? 39.Turning to the issue of costs, Section 27 of the Civil Procedure Act provides that:-27.Costs(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. 40.Thus, costs are awarded at the discretion of the court, and that ideally, they shall follow the event. The law also allows the court to depart from this rule upon justifiable reasons. In the present application, the 2nd Defendant has successfully prosecuted her application and is ideally entitled to the costs thereof. 41.It is however evident that the Plaintiff, who has been in court fighting for his land for the last 6 years, is by this very ruling barred from executing his judgment and enjoying the fruits thereof, and for a period that cannot be determined at this point. That being the case, it will not be just to again burden the Plaintiff with the costs of this application, while he is still being denied access to his land. Therefore, the court will decline to award costs to the 2nd Defendant, and hereby direct that each party shall bear their own costs hereof. Orders:- 42.In the end, this court finds that the Notice of Motion Application 23rd January, 2026 is merited. The same is hereby allowed as follows:-a.There shall be a grant stay of execution of judgment delivered in Eldoret ELC No. 56 of 2020 on 17th December, 2025 and all the consequential orders therein pending the hearing and determination of the intended appeal to the Court of Appeal.b.The said stay of execution is issued on condition that:-i.The Land Registrar do register an inhibition against the title to the suit land restraining any dealings on the suit property pending the determination of the intended appeal. The 2nd Defendant/Applicant will cause this ruling and/or order emanating therefrom to be served on the Land Registrar, to ensure that the said inhibition is registered within 30 days from the date hereof.ii.The 2nd Defendant/Applicant will deposit the full amount of the general damages awarded to the Plaintiff, being KShs. 2,000,000/- in a joint interest earning account held by the Advocates of the 2nd Defendant and the Plaintiff herein within 30 days from the date hereof.iii.Failure to abide by the above conditions within the given timelines, the order of stay of execution granted above shall automatically lapse.c.Each party shall bear their own costs of the application. 43.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 21ST DAY OF MAY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the virtual presence of;Mr. Rotich holding brief for Mr. Mathai for Plaintiff.Ms. Chirchir for the Interested PartyNo appearance for Defendants.Court Assistant - Laban.