https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3596

Imiet Supa Investments Limited (Formerly Goshen Ventures Limited) v Burton, Gichuke & Mbogo (Being Sued as the Personal Representatives of the Late Burton Mbogo Mwai alias Mbogo Mwai) & another (Environment and Land Case E027 of 2024) [2026] KEELC 3596 (KLR) (Environment and Land) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3596 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Case E027 of 2024 MC Oundo, J June 11, 2026 Between Imiet Supa Investments Limited (Formerly Goshen Ventures Limited) Plaintiff and Justice Mwangi Burton, Margaret Wanjugu Gichuke & Consolata Wanjiru Mbogo (Being Sued as the Personal Representatives of the Late Burton Mbogo Mwai alias Mbogo Mwai) 1st Defendant Ruth Muthoni Mbogo 2nd Defendant Ruling 1.Coming up for determination is a Notice of Motion Application dated 10th December, 2025, brought pursuant to the provisions of Section 1A, 1B, 3A of the Civil Procedure Act, Order 40 Rules 1, 2, and Order 52 of the Civil Procedure Rules, wherein the 2nd Defendant/Applicant has sought for the following orders:i.Spentii.The .firm of Murage Juma & Company Advocates be granted leave to come on record for the 2nd Defendant as per the consent signed with the firm of C. Kimathi & Company Advocates.iii.Spent.iv.That the Honourable Court be pleased to stay taxation of all and any bills filed by the Plaintiff and or any other party in the matter pending the hearing and determination of the 2nd Defendant’s intended Appeal.v.That the Honourable Court be pleased to stay execution of the Judgement and resultant Decree dated 9th October 2025 pending filing, hearing and determination of the 2nd Defendant/Applicant’s Appeal at the Court of Appeal.vi.That costs of the Application be provided for. 2.The Application is premised on its ground and the Supporting Affidavit of equal date, sworn by Ruth Muthoni Mbogo, the 2nd Defendant/Applicant herein, deposes that on 9th October 2025, the Court entered a judgement in favour of the Plaintiff, declaring that the properties L.R No. Naivasha/Mwichiringiri Block 4/1704-1709 were validly transferred to the Plaintiff by the 1st Defendant, and that the 2nd Defendant was to bear the costs of the suit. Being aggrieved by the said decision, she timely preferred an Appeal against the said judgement in its entirety by filing and serving upon the Plaintiff and the 1st Defendant a Notice of Appeal and a letter bespeaking a certified copy of the Judgement, Decree and proceedings. 3.That, however, despite the said Appeal, the Plaintiff had moved the Court (sic) and caused a Party-to-Party Bill of Costs dated 24th November 2025 to be filed. She explained that at the time of the judgement, she was represented by the firm of C. Kimathi & Company Advocates, who had since entered into a consent with the firm of Murage Juma & Company Advocates for the said firm of Murage Juma & Company Advocates to come on record. She contended that the appeal has a chance of succeeding, as it raises arguable issues of law and fact, and beseeched the Court to order a stay of taxation pending the hearing and determination of the Application and the preferred Appeal. 4.She argued that unless the taxation of the Party-to-Party Bill of Costs is stayed, the Deputy Registrar would proceed to tax it, leading to the issuance of a Certificate of Costs, after which execution would follow, causing unnecessary pressure and substantial loss upon the 2nd Defendant. That the Appeal would also be rendered nugatory should the taxation, and subsequently a Certificate of Taxation, be issued and executed. She asserted that she had a right to appeal, underpinned by constitutional principles, and that there is no justification for denying her an opportunity to be heard on appeal. She contended that the Plaintiff would suffer no prejudice if it waited for the hearing and determination of the Appeal. 5.In response to and in opposition to the 2nd Defendant/Applicant’s Application, the Plaintiff filed its Replying Affidavit, dated 3rd February 2026, sworn by Emma Waithera Ng’ang’a, a Director of the Plaintiff, who first deposed that the Application is misconceived, incompetent, bad in law, and an abuse of the court process. Thereafter, she contended that the Applicant principally seeks orders to stay the execution of the Judgement of the Honourable Court delivered on 9th October 2025, the consequent Decree issued on 16th October 2025, and the Party and Party Bill of Costs filed by the Plaintiff. 6.She explained that the applicable law governing applications for a stay of execution is Order 42 Rule 6 of the Civil Procedure Rules, 2010. That, in fact, the said provisions relate to a stay in the event of an appeal, yet the 2nd Defendant had not filed an appeal to invoke them, since filing a Notice of Appeal does not amount to filing an appeal. That, further, under the law, an appeal ought to be instituted within sixty (60) days of lodging a Notice of Appeal. That, nonetheless, in the instant case, whereas the 2nd Defendant had lodged a Notice of Appeal on 24th October 2025, the said statutory period had lapsed without any appeal being filed. 7.She deposed that where a party fails to institute an appeal within the prescribed time, the Notice of Appeal is deemed withdrawn by operation of law; accordingly, the 2nd Defendant’s Notice of Appeal dated 24th October 2025 stands withdrawn. That, in any event, even if an appeal had been filed but not served, no such appeal had been annexed to the instant Application to enable the Court to interrogate the grounds thereof and determine whether there exists any arguable appeal. 8.She argued that the 2nd Defendant had failed to demonstrate what substantial loss it stood to suffer if a stay is not granted, nor had it proposed any security for the due performance of the Decree, as mandatorily required by law. That, in any event, the instant Application had been brought after unreasonable delay and is overtaken by events, since the order directing the Land Registrar to remove the inhibitions registered against the suit properties within thirty (30) days of the Judgement had already been complied with, thus rendering it incapable of being stayed. With regard to the prayer for a stay of taxation of the Bill of Costs, she argued that the 2nd Defendant had not demonstrated any lawful or substantial prejudice it would suffer if taxation proceeded. 9.She thus prayed that the 2nd Defendant’s Notice of Motion Application dated 10th December 2025 be dismissed with costs. 10.The 1st Defendant filed Grounds of Opposition dated 13th February 2026 in response to the 2nd Defendant’s Application, opposing it on the grounds that;i.The application is bad in law, and the same should be struck.ii.The application is brought under the wrong provision of the law, and therefore, the Honourable Court’s jurisdiction to grant orders as sought is not properly invoked.iii.The letter bespeaking the proceedings was never served to the 1st Defendant and or the Plaintiff and therefore and as per Rule 84 of the Court of Appeal Rules, the 2nd Defendant was supposed to file the Record of Appeal within sixty (60) days from the date of filing the Notice of Appeal and which has not been done and legally the Notice of Appeal is deemed to have been withdrawn and therefore there is no appeal pending to warrant granting of orders as sought.iv.The Notice of Appeal does not seem to have been filed before the Court as the same does not bear the Deputy Registrar's signature and or seal.v.The application does not certify the grounds for the grant of orders of stay, especially on the grounds that the Applicant's appeal has high chances of success, it will suffer irreparable loss and/or render the Appeal nugatory.vi.The application is otherwise an abuse of the Court’s process. 11.In a rejoinder, the 2nd Defendant, through her further affidavit dated 26th March 2026, deposed that the Plaintiff’s Replying Affidavit dated 3rd February 2025 was incurably defective, bad in law, and in contravention of Section 5 of the Oaths and Statutory Declarations Act, since the deponent could not have appeared before a commissioner for oaths on 5th February 2025 to respond to an application filed in December 2025. 12.She reiterated that, upon delivery of the Judgment by the Court on 9th October 2025, her former advocate duly filed a Notice of Appeal through the Judiciary portal and paid the filing fees on 24th October 2025, which was within time, noting that 10th October 2025 had been a public holiday in celebration of Mazingira Day and 17th October 2025 had been declared a public holiday to mourn Raila Amollo Odinga. She further stated that the said Notice of Appeal had been served on all the parties through their advocates. 13.That, similarly, her former advocate on record had written a letter seeking certified proceedings and Judgement for purposes of appeal, which letter was duly filed on the Judiciary portal and served. That, indeed, her current advocate on record has been following up with the Court on the progress made in obtaining certified copies of the proceedings and Decree, but has not received any response signifying whether the documents are ready. She argued that the Plaintiff's allegation that the time to appeal has lapsed, since no record of appeal has been filed within 60 days and no proceedings have been availed by the Court despite a timely request, is based on a misapprehension of the law on appeals. 14.On the allegation that the filing of a Notice of Appeal does not constitute an appeal, she argued that, pursuant to Order 42 rule 6 of the Civil Procedure Rules, an appeal to the Court of Appeal is deemed to have been filed when, under the Rules of that Court, a Notice of Appeal has been given. She thus argued that, pursuant to that provision, a Notice of Appeal for the purpose of the instant Application constituted an appeal; hence, any argument to the contrary was based on a misunderstanding of the law. She further argued that the Plaintiff had not filed any evidence to show that the judgement had already been executed. 15.She denied in toto the allegations of the 1st Respondent, who had not filed any affidavit to challenge her affidavit testimony. She stated that she is willing to provide security as the Court considers reasonable. She maintained that the Plaintiff shall suffer no prejudice if it waits for the hearing and determination of the Appeal. 16.The instant Application was disposed of by way of written submissions, which I shall proceed to summarise as hereinunder. 2nd Defendant/Applicants’ Submissions. 17.The 2nd Defendant/Applicant vide her Submissions dated 24th March 2026 outlined two (2) issues for resolution as follows:i.Whether there is an Appeal as contemplated under Order 42 rule 6 (4) of the Civil Procedure Rules, 2010ii.Whether the Applicants have met the threshold for grant of a stay of execution of the judgement dated 9th October 2025 pending the hearing and determination of the Appeal at the Court of Appeal. 18.The Applicant argues that the court possesses the necessary jurisdiction to grant a stay, countering the Respondents’ claims that the time to appeal has lapsed or that the court is functus officio. She contended that, pursuant to Order 42 Rule 6(4) of the Civil Procedure Rules, an appeal to the Court of Appeal is deemed to have been filed for the purposes of a stay application once a Notice of Appeal is issued. 19.That since the Judgment was delivered on 9th October 2025, the Notice of Appeal filed on 23rd October 2025 was within the mandatory 14-day window, because 10th October was Mazingira Day and 17th October was a public mourning day for Raila Amollo Odinga, both of which public holidays must be excluded from the timeline. 20.Responding to claims that she failed to file a Record of Appeal within 60 days, the Applicant noted that she had strictly complied with Rule 84 of the Court of Appeal Rules, 2022 by serving a letter requesting the proceedings within 30 days of judgment, on 27th October 2025, and following up on 16th March 2026. The remaining delay, therefore, rested with the court’s failure to supply the certified documents. 21.Regarding the 1st Defendant’s claim that the Notice of Appeal lacked the Deputy Registrar's signature or seal, the Applicant noted that under modern electronic filing in the Judiciary portal/CTS, an Applicant who pays the required fees cannot be penalized for an administrative omission by a court registrar. 22.The Applicant relied on the following authorities and then law in support of her application:i.Frank Kibet Endere v John Kenyatta Onchiri [Civil Appeal 68 of 2019 to affirm that the court of first instance retains full jurisdiction to grant a stay pending appeal.ii.Section 57 of the Interpretation and General Provisions Act to legally justify the exclusion of public holidays when calculating filing deadlines.iii.Kenya Bus Services Ltd v Muna Isaack [2004] eKLR and Mustano Rocco v Aniello Sterelli [2019] eKLR to argue that if the Respondents wish to contest or strike out the Notice of Appeal, they must formally move the Court of Appeal under Rule 86 within 30 days of service.iv.Pride Inn Hotels & Investments Limited v Tropicana Hotels Limited [Civil Appeal 98 of 2017 to establish that a litigant is not responsible for, nor should they be penalized for, a Deputy Registrar's failure to sign or stamp an otherwise properly presented and paid-for document. 23.On the second issue as to whether she had met the threshold for a stay of execution, she relied on Order 42 Rule 6(2), to assert that she had satisfied all criteria required for the court to exercise its discretion in her favour: That on whether she would suffer substantial & irreparable loss, the disputed lands L.R No. Naivasha/Mwichiringiri Block 4/1704-1709 belonged to her late father and carry deep ancestral and economic value. If a stay is denied, the Plaintiff will immediately lift the inhibitions, transfer, sell, or charge the land, and execute the Bill of Costs. This would permanently alienate the property, rendering her intended appeal completely academic and/or nugatory. 24.She argued that forcing a litigant through costly taxation and execution procedures while an appeal is actively pending constructively blocks access to justice by putting undue financial pressure on them. 25.She submitted that the Application had been brought diligently and swiftly, having been filed on 17th December 2025 following a judgment that had been delivered on 9th October 2025. 26.She submitted that she had explicitly stated her willingness to provide reasonable security as ordered by the court. However, she cautions that demanding massive financial/monetary security would unfairly stifle her constitutional right to appeal. 27.On a balance of prejudice, she submitted that the Plaintiff continues to hold actual possession and occupation of the property, meaning they will suffer zero prejudice if forced to wait for the appeal's conclusion. Conversely, the 1st Defendant failed to file any affidavit to contest these facts. 28.She relied on the following authorities in support of her submissions.i.Tropical Commodities Suppliers Ltd v International Credit Bank Ltd [2004] 2 EA 331, which defined ‘substantial loss’ qualitatively rather than mathematically, denoting any loss of real worth, value, or substance as opposed to something nominal.ii.James Wangalwa v Agnes Naliaka Chesoto [2012] eKLR and Kenya Anti-Corruption Commission v Frann Investments [2021] KEELC 1784 (KLR) to show that substantial loss arises when execution alters the status quo so drastically that future appeal victories cannot adequately compensate the injured party.iii.Elena Doudoladova Korir v Kenyatta University [2014] eKLR to submit that timely applications for stay demonstrate litigation diligence, which favours the grant of the order.iv.Wekesa v Kisibo [2023] KEELC 21901 (KLR) and Focin Motorcycle Co. Limited v Ann Wambui Wangui [2018] eKLR to argue against excessive or strictly monetary security demands that serve no purpose other than to price a vulnerable litigant out of their right to be heard on appeal. 29.In conclusion, she submitted that a stay was essential to preserve the subject matter of the Appeal and urged the Honourable Court to grant a stay of execution, judgement and decree. Plaintiff’s Submission 30.The Plaintiff vide its Submissions dated 10th April 2026 summarized the factual background of the matter before framing three (3) issues for determination as follows:i.Whether there exists a competent appeal to warrant grant of stay of execution pending such an appeal.ii.If so, whether the court can issue stay of execution orders against a declaratory order and/or an order which compliance period has lapsed.iii.Whether the Applicant has satisfied the criteria for the grant of a stay of execution pending appeal. 31.On the first issue for determination as to whether there exists a competent appeal to warrant the grant of a stay of execution pending such an appeal, the Plaintiff contended that the court cannot anchor an order for a stay because the underlying appellate process is fundamentally defective and legally non-existent. The Judgment was delivered on 9th October 2025. Under Rule 77(2) of the Court of Appeal Rules, a Notice of Appeal must be filed within 14 days, which made the final deadline 23rd October 2025. Because the Applicant filed her Notice on 24th October 2025, it was late and filed without court leave, making it incompetent. 32.The Plaintiff argued that the Applicant’s reliance on Section 57 of the Interpretation and General Provisions Act was entirely misplaced. Instead, Order 50 Rules 2 and 3 of the Civil Procedure Rules govern this matter, wherein under these rules:i.Sundays and public holidays are only excluded if the statutory period is less than 6 days (here, it is 14 days).ii.An extension only applies if the final day itself falls on a Sunday or public holiday. Since 23rd October 2025 was a regular weekday, the timeline could not be extended. 33.Under Rule 84 of the Court of Appeal Rules, an appeal must be fully instituted within 60 days of lodging the Notice of Appeal. While the Applicant wrote a letter requesting typed proceedings on 27th October 2025, she failed to serve it upon the Respondents within 30 days. Because service was only affected months later on 17th March 2026, after the 1st Defendant raised the issue, the Applicant cannot claim protection under the Rule 84 proviso. 34.It submitted that by operation of Rule 85 of the Court of Appeal Rules, because the statutory 60-day timeline lapsed without an appeal being properly instituted, the Notice of Appeal was legally deemed withdrawn. 35.On the second issue as to whether the Court can stay declaratory orders or lapsed deadlines, the Plaintiff asserted that the nature of the specific orders issued in the 9th October 2025 judgment made them legally incapable of being stayed. The court's primary decree declared that the suit properties L.R No. Naivasha/Mwichiringiri Block 4/1704-1709 were validly transferred to the Plaintiff. It is settled law that purely declaratory orders do not command any positive performance that can be executed and therefore cannot be stayed. 36.The only positive directive was to the Land Registrar to remove the 2nd Defendant's inhibitions within 30 days. That 30-day compliance window lapsed on 9th November 2025. The Applicant has failed to show that the inhibitions remain. The court cannot, therefore, issue orders in vain when the act has already occurred or the deadline has dissolved. 37.The Key Authorities and provisions of the law cited on issues 1 & 2 were as follows;i.Order 50 Rules 2 & 3 of the Civil Procedure Rules to demonstrate that public holidays are not excluded for periods exceeding 6 days, invalidating the Applicant's math.ii.Rules 77(2), 84, and 85 of the Court of Appeal Rules, 2022 to show that failing to file the Notice within 14 days, and failing to serve the bespeaking letter within 30 days, results in the statutory withdrawal of the intended appeal.iii.Faith Homes of Kenya v Robert Cherukwo [2021] KEHC 1646 (KLR) to establish the binding principle that declaratory orders are incapable of being stayed. 38.On the third issue as to whether the Applicant has satisfied the criteria for a stay, the Plaintiff maintained that the Applicant failed to meet the strict three-pronged threshold set out in Order 42 Rule 6(2) of the Civil Procedure Rules contending that there had been no substantial loss demonstrated as the suit properties are legally registered to the Plaintiff, and the Applicant is not in active physical possession or occupation of them. That while the Applicant claimed a right as a beneficiary of her late father's estate, the evidence on record proved that an entirely separate parcel of land No. 1710 had been explicitly set aside for her and remains fully available to her. Lastly, any potential loss she would face regarding the Party-to-Party Bill of Costs was strictly financial, with monetary costs being easily quantifiable and fully refundable if her appeal succeeds, meaning it did not constitute ‘irreparable or substantial loss.’ 39.The Plaintiff summarized its position into three crisp points: there is no competent appeal to anchor a stay, the orders themselves were legally incapable of being stayed, and no substantial loss has been proven. Consequently, the Plaintiff requested the Honourable Court to dismiss the Notice of Motion Application with costs. 1st Defendant’s Submissions 40.The 1st Defendant, vide his submissions dated 10th April, 2026 summarized the factual background of the matter and then condensed their Grounds of Opposition into the following three (3) pertinent issues:i.The application is brought under the wrong provision of the law and therefore does not invoke the jurisdiction of the Honourable Court to grant the orders sought.ii.The letter relating to the proceedings was never served on the 1st Defendant and/or the Plaintiff. Therefore, as per Rule 84 of the Court of Appeal Rules, the 2nd Defendant was required to file the Record of Appeal within sixty (60) days of the filing of the Notice of Appeal, which she has not done. The Notice of Appeal is deemed withdrawn; therefore, there is no appeal to warrant the granting of the orders sought.iii.The application does not establish the grounds for granting the orders sought, particularly on the issue of irreparable loss and the appeal being rendered nugatory. 41.On the first issue, their contention was that the current application is brought under the provisions of Order 40 of the Civil Procedure Rules, which essentially deals with injunctions. Yet it seeks orders for a stay of execution pending the hearing and determination of the Appeal, which, legally, should have been brought under Order 42 Rule 6 of the Civil Procedure Rules. Hence, it is clear that the application is brought under the wrong provisions of the law and does not invoke the jurisdiction of the Honourable Court to grant the orders as sought. Thus, the same is bad in law and should be dismissed. He placed reliance on the Court of Appeal in Nairobi Civil Application No. 53 Of 2020, Izaak Mwangi Kuria -Vs- Kibuchi Muriithi, to urge the Court to disallow the application for being bad in law and for being brought under the wrong provision of the law. 42.On the second issue for determination, they submitted that the letter bespeaking proceedings had not been served and that the record of appeal was supposed to be filed within sixty (60) days from the date of filing of the notice of appeal, as envisaged in Rule 84 of the Court of Appeal Rules. That the 2nd Defendant had requested typed proceedings on 27th October, 2025, in a letter that was neither served upon the Plaintiff nor the 1st Defendant. It was only after the 1st Defendant raised the issue in the ground of opposition that the Applicant’s current Advocate wrote a reminder letter to the Deputy Registrar inquiring into the current position of the proceedings, vide a letter dated 16th February, 2026, which was copied to the Respondents via e-mail. 43.That indeed, it is clear that the Notice of Appeal was filed on 24th October, 2025, hence sixty (60) days had already lapsed, yet no record of appeal has been filed. They emphasized that the Applicant cannot invoke the provision of Rule 84 (1) of the Court of Appeal Rules so long as the letter requesting typed proceedings was not served on the Plaintiff and the 1st Defendant. They relied on the decision in Malindi Civil Application No. 59 Of 2019 Vitrociset Spa Kenya Branch -Vs- Musaji Inayat Hussein, where the letter bespeaking the proceedings had not been served to the Respondent’s Counsel and the Court held that the record of appeal was supposed to be filed within Sixty (60) days of the impugned judgment. The court struck out the notice of appeal. 44.Their position was that, legally, there was no appeal pending to warrant issuance of an order for stay, as the Applicant is deemed to have withdrawn the Notice of Appeal; hence, they urged the Honourable Court to disallow the application on this ground. 45.As to whether the Applicant had satisfied the condition for the grant of orders for stay pending appeal, they relied on the provisions of Order 42 Rule 6 of the Civil Procedure Rules on the conditions for the grant of stay of execution to submit that, in the instant matter, the Applicant had not stated what loss she stood to suffer if an order for stay is not granted. It was also clear, as confirmed in the pleadings filed, that the 1st Defendant and other family members had left a portion of land, being Naivasha/Mwichingiri Block 4/1710, to be allocated to the 2nd Defendant, which portion was still intact, and that there was money held in bank by the 1st Defendants, being the 2nd Defendant’s share for the sale of one portion of land; hence she did not stand to suffer any loss. 46.That the Applicant had also failed to provide security as required by law, and hence it is clear that the current application did not satisfy the condition required by law; thus, the same was not merited. 47.That the instant Application having been filed after a bill of costs had been filed by the Plaintiff, it was clear that the Applicant was only after frustrating the said taxation process and ultimately the payment of costs of the suit as had been ordered in the impugned judgement herein. They thus urged the Court to proceed and dismiss the application with costs. Determination. 48.Having considered the application before the court herein, the opposition thereto, the submissions by parties, the authorities cited, and the applicable law. 49.In summary, the Applicant brings her application seeking the firm of Murage Juma & Company Advocates to officially come on record in place of C. Kimathi & Company Advocates based on a signed consent, a stay of execution of the Judgment/Decree of the court dated 9th October 2025 and lastly a stay the taxation of the Plaintiff's Bill of Costs, pending the determination of her intended Appeal. 50.In opposition to the Application, the Plaintiff/Respondent’s argument was that under Order 42 Rule 6, a stay requires an active appeal and that a Notice of Appeal is not an appeal. Since 60 days of the Notice had lapsed without an appeal being filed, the Notice of Appeal is therefore legally deemed withdrawn. That no draft/intended memorandum of appeal was annexed to show arguable grounds, and the Applicant also failed to demonstrate specific substantial loss or any proposed/concrete security for due performance of the decree. That the application had been overtaken by events as the order directing the Land Registrar to remove property inhibitions had already been complied with within 30 days of the Judgment and cannot be stayed retrospectively. 51.The 1st Defendants, in their grounds of opposition, held that the application invoked improper sections of the law, meaning the court's jurisdiction was not properly invoked. Secondly, the letter requesting proceedings was never served on them, and the Plaintiffs; therefore, under Rule 84 of the Court of Appeal Rules, because no Record of Appeal was filed within 60 days, the Notice of Appeal was legally deemed withdrawn. Lastly, the Notice of Appeal filed via the Judiciary portal lacked the critical signature and seal of the Deputy Registrar. 52.Given the summarized history of the matter in issue, I find the issues arising for my determination as follows:i.Whether citing the wrong enabling provision in an application is fatal.ii.Whether the orders in the impugned judgement were positive or negative in nature.iii.Whether there should be a stay of the taxation of the Plaintiff's Bill of Costs 53.On the first issue for determination, I find that to determine whether the application has been properly moved, the Court must balance the technical rules of pleading against the overarching constitutional mandate to administer substantive justice without undue regard to technicalities. The 1st Defendant contends that anchoring a stay application to Order 40 (Injunctions) rather than to Order 42 Rule 6 (Stays pending appeal) is a fatal procedural defect that robs the court of jurisdiction because deploying temporary injunction provisions to seek post-judgment appellate stays is a misconstruction of the law that renders the motion incompetent. That a court cannot therefore grant a remedy under a statutory provision that does not legally provide for it. 54.In Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR, the Supreme Court held that:“The question then is, whether this omission is fatal to the applicant’s case. It is trite law that a Court of law has to be moved under the correct provisions of the law. We note that this Court is the highest Court of the land. The Court, on this account, will in the interest of justice, not interpret procedural provisions as being cast in stone. The Court is alive to the principles to be adhered to in the interpretation of the Constitution, as stipulated in Article 259 of the Constitution. Consequently, the failure to cite [the relevant provision] will not be fatal to the applicant’s cause.” 55.While the firm of M/S Murage Juma & Company Advocates exhibited sloppy draftsmanship by anchoring a post-judgment stay on Order 40 of the Civil Procedure Rules, based on the above decision, which is binding to the court, the application is not fatally defective. The Respondents suffered no prejudice; they clearly understood that the Applicant was seeking a stay of execution and a stay of taxation, and they responded to those specific demands in their respective Replying Affidavits and Grounds of Opposition. 56.On the second issue as to whether the orders in the impugned judgement of 9th October 2025 were positive or negative in nature, the court had determined as follows:‘’Judgement is herein entered for the Plaintiffs against the Defendants for the following orders:i.It is herein declared that the suit properties LR No Naivasha/Mwichiringiri Block 4/1704-1709 were validly transferred to the Plaintiff by the 1st Defendant;ii.The land Registrar shall within 30 days from the date of delivery of this Judgement, remove the inhibitions lodged by 2nd Defendant on the suit properties.iii.The 2nd Defendant shall bear costs of the suit.’’ 57.As seen from above, order (i) did not command anyone to do anything, but simply declared a historical and legal fact that the transfer of land from the 1st Defendant to the Plaintiff was legal and therefore it was self-executing upon delivery. It is trite that a purely declaratory order cannot be stayed because there is no positive enforcement process to halt. 58.Order (ii) was a directive to the Land Registrar to perform a physical, administrative act of removing the registered inhibitions within a strict 30-day timeline. This order was therefore capable of being stayed before the 30 days expired. However, because the 30 days lapsed on 9th November 2025 and the Land Registrar complied, it has been converted into an executed act. 59.The last Order (iii) was an award of Costs which created a positive financial obligation as it triggered a multi-step executive machinery where the Plaintiff filed its Bill of Costs and can actively be stayed by a court to protect a litigant from financial execution. 60.Indeed in the case of Western College of Arts and Applied Sciences vs. Oronga (1976) KLR 63, the Court of Appeal held that:-“But what is there to be executed under the judgment, the subject of the intended Appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In the instant case, the High Court has not ordered any of the parties to do anything or refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this Court in an application for stay, to enforce or to restrain by injunction.” 61.Accordingly, the judgment herein having been negative in nature, I find that no orders flow from the said judgement in respect of which a stay order could validly be granted save for the order on costs. 62.Therefore, on whether there should be a stay of the taxation of the Plaintiff's Bill of Costs, under paragraph 11 of The Advocates (Remuneration) Order, the procedure for objecting to a decision of the taxing officer is through a recourse to the High Court (read Environment and Land Court) by way of a reference to a Judge by Chamber Summons. The Judge's decision on such an objection is Appealable, with the Judge's leave, to the Court of Appeal. Under Paragraph 12 of the Order, the parties to the taxation may, by consent, refer any matter in dispute arising out of the taxation of a bill of costs for the opinion of the High Court (read Environment and Land Court) Therefore in addition to providing the taxing master with the parameters and tools for carrying out taxation of costs, the Advocates (Remuneration) Order contains a comprehensive process for any party aggrieved by a decision of the taxing officer to object to it before a Judge and, as we have seen, further recourse to the Court of Appeal with the leave of the Judge. 63.The Court of Appeal in the case Otieno Ragot & Company Advocates v Kenya Airports Authority [2015] eKLR made a reference to its finding in the case of Sharma vs. Uhuru Highway Development Ltd [2001] 2 EA 531 where it had held that:“an advocate after rendering services to his client forwarded a fee note to his client. It was not paid. The advocate commenced a miscellaneous civil suit in the High Court submitting his itemized advocate/client bill of costs for taxation. The taxation was then scheduled before the taxing officer. Before the taxation was done, the client applied to the High Court for stay of the taxation and for the striking out of the Miscellaneous Cause. When the matter reached this Court, it was held that the proceedings before the High Court were a nullity as the matter had already been fixed for taxation before the Deputy Registrar and there were no grounds conferring jurisdiction on the Judge to hear the matter and no steps had been taken to divest the Deputy Registrar of his jurisdiction. This Court was clear that in those circumstance the High Court did not have jurisdiction to entertain the application for stay.’ 64.In the case of Bernard Gichobi Njira v Kanini Njira Kathendu & Another [2016] eKLR, the Court of Appeal, when faced with a similar application, held as follows:“Nothing is irreversible here, including payment of any costs, as these are repayable by refund. Indeed, no allegation has been made that the Respondents are incapable of making such refund. The application in any event was premature as no bill of costs had been submitted before the High Court for taxation and execution was a distant possibility.’’ 64.I have nothing useful to add to the said finding by the Court of Appeal, which is binding on this Court. In the circumstances, I hereby dismiss the Applicant’s application for a stay of execution of the Judgement and resultant Decree dated 9th October 2025 with costs. 65.In regard to the application for stay of taxation of all and any bills filed by the Plaintiff and or any other party, the court directs as follows:i.The Plaintiff’s Party and Party Bill of Costs dated 24th November 2025 shall proceed to formal taxation before the Taxing Officer.ii.Upon completion of the taxation, the issuance of the Certificate of Costs and any subsequent execution processes are hereby stayed pending the hearing and determination of the intended Appeal at the Court of Appeal.iii.The Applicant shall deposit a sum of Ksh 500,000/= as security for costs in court within thirty (30) days, failing which the stay order shall automatically lapse. DATED AND DELIVERED AT NAIVASHA VIA MICROSOFT TEAMS ON THIS 11TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT – JUDGE