https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4686

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NO. 262 OF 2018** 1. **KENNEDY ELLAM WEKESA (**As Legal Representative of the Estate of **GEORGE ELLAM WEKESA)** 1. **GEORGE ELLAM WEKESA …………………..… PLAINTIFFS** **VERSUS** **ABDULLA TAIB (AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF SHEIKH ALI TAIB) ……………….…….. DEFENDANT** **CATHERINE NEMALI WEKESA …….………..………… OBJECTOR** **RULING** 1. By the Notice of Motion dated 10th July 2025, Kennedy Ellam Wekesa, suing as the Legal Representative of the Estate of George Ellam Wekesa (the Plaintiff/Applicant) prays for a stay of execution of the decree issued herein pending the hearing and determination of his Appeal. 2. The Application is supported by an Affidavit sworn by the Plaintiff and is premised on the grounds that: 3. **The Plaintiff desires to appeal against the decision of this Court and has filed a Notice of Appeal;** 4. **The Plaintiff stands to suffer great prejudice if the orders sought herein are not granted and the Appeal succeeds;** 5. **The Defendant stands to suffer no prejudice that cannot be addressed by way of costs;** 6. **The Defendant has proceeded and obtained warrants against the Plaintiff in his individual capacity yet the execution should only be carried out in respect to the assets of the estate; and** 7. **That for the interest of justice and fairness to be realized, it is both imperative and fair that the orders sought herein be granted.** 8. Abdalla Taib, sued as the Legal Representative of the Estate of Sheikh Ali Taib (the Defendant/Respondent) is opposed to the application. By his Grounds of Opposition dated 23rd July 2025, the Defendant opposes the application on the grounds: 9. **That the Application is** **misconceived and is bad in law;** 10. **That the Application is defective;** 11. **The said Application is made true to the Objector’s form and track record in seeking to circumvent and defeat the cause of justice and to make the court act in vain;** 12. **That the matter is *Res Judicata;*** 13. **That the court is *functus officio; and*** 14. **That the Respondent/Judgment Debtor has suffered and continues to suffer prejudice as he is unable to enjoy the fruits of the judgment by the continued actions of the Applicant.** 15. I have carefully perused and considered the Plaintiff’s application as well as the Grounds of Opposition as filed by the Defendant. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties. 16. By his Notice of Motion application filed herein, the Plaintiff prays for an order of stay of execution of the decree pending the hearing and determination of his Appeal to the Court of Appeal. The Defendant is opposed to the application and asserts that the same is misconceived and bad in law. It is further the Defendant’s position that the application as filed is res judicata and that the Court is *functus officio* and should no longer entertain the same. 17. From the outset, it is proper to point out that while the Notice of Motion dated 10th July 2025 prays for a stay of execution of the decree, a perusal of the Supporting Affidavit sworn by Kennedy Ellam Wekesa reveals that the Plaintiff is aggrieved by the Ruling delivered by this Court on 4th July 2025 and that the same is the basis for the prayer for the stay of execution. 18. In respect of an application for stay of execution, Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows: **“(2) No order for stay of execution shall be made under sub-rule (1) unless-** 1. **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** 2. **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."** 3. As was held in the case of ***RWW –vs- EKW (2019) eKLR***: **“The purpose of an Application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”** 1. On the question of substantial loss, the Court in ***James Wangalwa & Another –vs- Agnes Naliaka Cheseto (2012) eKLR,*** held as follows: **“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 ... 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.”** 1. In the matter herein, it was not clear to me the basis upon which the Plaintiff had applied for a stay of execution either of the decree or the orders issued herein on 4th July 2025. What was clear was rather the fact that there is a great deal of confusion and collusion on the part of both the Plaintiff and the Objector herein. That much can be discerned from the fact that the Ruing delivered on 4th July 2025 was the result of an application by the Objector herein Catherine Nemati Wekesa wherein she had inter-alia sought for orders of stay of execution. 2. From a perusal of the Supporting Affidavit sworn by the Plaintiff herein, it is evident that he has no interest in the properties attached by the Defendant and that therefore he does not stand to suffer any loss. That much is clear from a perusal of Paragraph 5 and 9 of the Affidavit in which the Plaintiff deposes as follows: **“5. That I know as a matter of fact that the properties that have been attached do not belong to the Estate of the deceased either do I have control and authority over the same; and** **9. That although none of my personal properties has been attached and although no asset of the Estate of the deceased has been attached honesty and sincerity dictates that I make it known to the court that the properties attached do not belong to the Estate.”** 1. Arising from the foregoing, the Applicant has not demonstrated any loss that he is likely to suffer if the orders of stay are not granted as the properties attached neither belong to him nor to the estate he represents. 2. In the premises, I find and hold that the Notice of Motion dated 10th July 2025 is devoid of merit and that the same has been filed in abuse of the Court process. I dismiss the same with costs to the Defendant. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 23rd day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Wameyo Advocate for the Plaintiff/Applicant c) Ms. Taib Advocate for the Defendant/Respondent