Ojwang v Ghelani & 5 others (Environment and Land Case 232 of 2013) [2026] KEELC 3187 (KLR) (21 May 2026) (Ruling)

Ojwang v Ghelani & 5 others (Environment and Land Case 232 of 2013) [2026] KEELC 3187 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3187 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case 232 of 2013 E Asati, J May 21, 2026 Between Jacob Nyakwa Ojwang Plaintiff and Nathwalal Narishidas Ghelani 1st Defendant Joshua Omari t/a Sedime Agencies 2nd Defendant Samwel Ogweno Okech 3rd Defendant Joshua Ongwen Wagude 4th Defendant The District Land Registrar 5th Defendant and Chaju Builders Limited Interested Party Ruling The application 1.The Notice of Motion application dated 5th December, 2025, was brought on behalf of the Interested Party/Applicant pursuant to the provisions of Order 42 Rule 6, Order 51 Civil Procedure Rules, and sections 1A, 1B, 3, and 3A of the Civil Procedure Act. 2.The substantive relief sought in the application is an order of stay of execution of the ruling issued on 31st July, 2025, pending the hearing and determination of the appeal in the Kisumu Court of Appeal vide Notice of Appeal dated 6th August, 2025. The application also sought an order that the Plaintiff be condemned to bear the costs of the application. 3.The Interested Party/Applicant’s case, as contained in the Supporting Affidavit of Cornel Opiyo Osano, sworn on 5th December, 2025, was that the 3rd and 4th Defendants obtained a ruling dated 31st July, 2025, which ruling was against the interests of the Interested Party. That the 3rd and 4th Defendants were now in the process of executing the decree, that if execution proceeds, the Interested Party will cease to own land that has been registered in its name. 4.That being dissatisfied with the Ruling, the Interested Party has preferred an appeal in the Court of Appeal at Kisumu. That the Interested Party did not take part in the proceedings but was only added to the proceedings at the point of execution. That if the stay is not granted, the appeal will be rendered nugatory. That the Interested Party is ready and willing to abide to the paying of security for costs and any conditions for stay of execution pending appeal. 5.In addition, the Interested Party/Applicant filed a Further Affidavit sworn by the same deponent on 2nd February, 2025. He deposed inter alia that the orders of 31st July, 2025, have not been implemented as the 6th Defendant is yet to conclude the process of transfer and/or rectification of the register, and that no title deeds have been issued by the Chief Land Registrar yet. The response 6.The application was opposed by the 3rd and 4th Respondents. They filed a Replying Affidavit sworn by Mathews Owinyo Odera on 12th January, 2026. 7.It was the case of the 3rd and 4th Defendants that the ruling dated 31st July, 2025 was made in their favour, whereupon they extracted the orders which have since been executed, and that the suit parcels have since been restored in the names of the rightful owners in compliance with the court order. That the order of stay of execution being sought cannot be issued as the ruling has already been implemented, hence the Notice of Motion dated 5th December, 2025, has been overtaken by events, and that the court cannot issue orders in a vacuum. 8.The 3rd and 4th Defendants contended further that the Applicant/Interested Party has not met the conditions for the grant of an order of stay of execution pending hearing and determination of appeal. 9.That the Applicant/Interested Party has not provided security for the due performance of the decree that may ultimately be issued by the court. That the security to be provided must be real and capable of satisfying the decretal sum. That the application was lodged with unreasonable delay, and that the Interested Party is guilty of laches. 10.That the Interested Party is only intent on delaying, obstructing, and/or defeating the realization of the judgment and decree herein. Applicant’s submissions 11.Pursuant to directions given on 26th January, 2026, the application was heard by way of written submissions. It was submitted on behalf of the Interested Party/Applicant vide the written submissions dated 4th February, 2026, filed by Muma & Kanjama Advocates that the conditions for granting stay of execution are spelt out in Order 42 Rule 6. Counsel relied on the case of Butt v Rent Restriction Tribunal [1979] where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse an order of stay of execution pending appeal. 12.That the Interested Party is the registered owner of land No. KISUMU/KANYAKWAR “B”/2734, and that with the court having delivered the ruling dated 31st July, 2025, issuing orders declaring the sub-division of the suit land parcel No. KISUMU/KANYAKWAR “B”/396 into various parcels, including parcel No. KISUMU/KANYAKWAR “ B “/2734, as being illegal, there is a real and apparent risk that the Interested Party is going to be dispossessed of his property. That the Interested Party is thus likely to suffer substantial loss and that the appeal will be rendered nugatory. 13.Counsel referred the court to among other authorities, the case of Tabro Transporters Ltd v Absalom Dora Lumbasi [2012]eKLR where the court opined that in making a determination on whether an appellant would suffer substantial loss, the court should take cognizance of the fact that the 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. 14.Counsel submitted further that the Applicant herein has initiated an appeal at the Court of Appeal. That in the meantime, as a result of the court orders issued pursuant to the ruling made on 31st July, 2025, the 3rd and 4th Defendants have set in motion the process of cancellation of the Applicant’s title, which shall have the effect of dispossessing the Applicant, and this shall occasion substantial loss to the Applicant. That the Respondents stand to suffer no prejudice as their rights as decree-holders remain protected by the security/undertakings. 15.On provisions of security for due performance, Counsel submitted that the Applicant has indicated its willingness to comply with any condition on provisions of security as directed by the court. That the Applicant prays the court to issue reasonable terms on security, taking into account the circumstances of the matter. 16.Counsel relied on the case of Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018]eKLR to support the submissions. Counsel urged the court to allow the application. 3rd and 4th Defendants/Respondents’ submissions 17.On behalf of the 3rd and 4th Defendants/Respondents, written submissions dated 27th February, 2026, were filed by the firm of Oguttu Mboya, Ochwal & Partner Advocates. 18.Counsel framed the following as the issues for determination in the application:-a.Whether the application has been overtaken by eventsb.Whether the Applicant has met and/or demonstrated the conditions set out for staying of execution of the orders of 31st July, 2025c.Who should bear the costs of the instant application? 19.Counsel submitted that the order emanating from the ruling of 31st July, 2025, was served upon the Land Registrar, who, upon payment by the 3rd and 4th Respondents of the requisite charges, proceeded to implement the orders by rectifying the register and restoring the names of the 3rd and 4th Respondents pursuant to the orders. That the land surveyor confirmed the implementation vide the report dated 10th December, 2025. 20.Relying on the cases of Nadeon A. Kana v Lucy Wambui Mwangi (2021)eKLR, where it was held that a matter overtaken by events cannot be tenable any more and the case of Raphael Kakene Muloki & Another v Cabinet Secretary of Land & 2 Others (2021)eKLR where it was held that where an application has been overtaken by events, issuance of the orders sought therein would be tantamount to issuing orders in vain. Counsel submitted that the orders being sought by the Interested Party herein cannot issue in a vacuum, that the instant application has been overtaken by events. 21.On whether the Applicant has demonstrated grounds for grant of an order of stay of execution, Counsel submitted that the Applicant has not proved substantial loss. That the application has been brought with unreasonable delay, as the application was filed on 5th December 2025, which was 4 (four) months after the delivery of the ruling on 31st July 2025, hence the applicant is guilty of laches. Counsel submitted further that the Applicant has not made any offer and/or any proposal for the provision of security for costs, whatsoever. 22.Counsel submitted that under Order 42 Rule Civil Procedure Rules (Amendment Rules 2020), the conditions for stay of execution cannot be severed but must be demonstrated jointly and that since the Applicant has failed to demonstrate all of them, the application must fail. 23.On the costs of the application, Counsel relied inter alia on Section 27 of the Civil Procedure Act and submitted that the party who wins, having claimed costs, should be awarded costs of litigation for having incurred expenses to conduct the suit/litigation. Counsel urged the court to dismiss the application with costs. Analysis and determination 24.I have considered the application, the Affidavits sworn in support thereof, the Replying Affidavit, and the rival submissions made by Counsel. The substantive relief sought is an order of stay of execution of the orders emanating from the court ruling made on 31st July, 2025, pending hearing and determination of an appeal lodged to the Court of Appeal. 25.There is no dispute that an appeal has been preferred to the Court of Appeal against the ruling dated 31st July, 2025. Both parties refer to a Notice of Appeal lodged by the Interested Party/Applicant dated 6th August, 2025. Under Order 42 Rule 6(4) provides that for purposes of the Rule, an appeal to the Court of Appeal shall be deemed to have been filed when, under the Rules of the Court of Appeal, Notice of Appeal has been given. 26.The grounds for the grant of an order of stay of execution as set out in Order 42 Rule 6(2) have been discussed by the parties herein in their respective written submissions. 27.The 3rd and 4th Respondents' main ground of opposition to the grant of the order of stay of execution sought is that the application has already been overtaken by events, as the court order of 31st July, 2025, whose execution is sought to be stayed, has since been implemented. 28.One of the orders made in the ruling dated 31st July, 2025, directed that;“The purported subsequent sub-division of the suit property KISUMU/KANYAKWAR B/396 into KISUMU/KANYAKWAR B/2732 (further sub-divided into subplots 2745, 2746, 2747, and 2748), 2733, and 2734 and the transfer and registration of the purported sub-division in favour of the Plaintiff and Chaju Builders Limited, are hereby cancelled, and the Land Registrar, Kisumu County, shall rectify and restore the register of the land parcels KISUMU/KANYAKWAR B/1689 – 1770 in the name of the 3rd and 4th Defendants/registered owners thereof.” 29.Although the Applicant acknowledges that the 3rd and 4th Respondents have initiated the process of cancellation of the titles, the Applicant denies that implementation of the order has taken place, and that hence the application has not been overtaken by events. 30.To support their contention that the application has been overtaken by events, the 3rd and 4th Respondents exhibited the duly extracted order emanating from the ruling dated 31st July, 2025, payment receipt for the Court Order and registration therefor at the Land Registry, which was assessed on 18th August, 2025 at Kshs.85,000/- and implementation report dated 10th December, 2025 addressed to the court from the State Department of Lands and Physical Planning, Directorate of Survey and Mapping and signed by Surveyor in Charge, Nyanza Region. 31.The report indicates that the office received the court order and implemented the same by cancelling the subdivision of land parcel No. KISUMU/KANYAKWAR B/396. The report concluded that;“Consequently, the sub-division of KISUMU/KANYAKWAR B/396 into land parcels KISUMU/KANYAKWAR B/1689 to 1770 has been restored on the amendment parcel dated 21st November, 2025. 32.The Applicant exhibited no evidence that the report by the Surveyor was untrue. The essence of the stay order that is sought by the Interested Party herein is to preserve the parcel of land registered in its name, namely, parcel No. KISUMU/KANYAKWAR B/2734 and prevent its cancellation, pending hearing and determination of the Appeal to the Court of Appeal. However, this parcel (KISUMU/KANYAKWAR ‘B’/2734) is one of the parcels listed in the Surveyor’s implementation report exhibited by the 3rd and 4th Defendants, as having been cancelled in implementation of the court order. 33.As submitted on behalf of the 3rd and 4th Respondents, to grant an order of stay of execution in the circumstances would be vain. 34.It is noteworthy that the Applicant, who was aware of the court order and who had filed the Notice of Appeal in August 2025, took no steps to stop/stay the execution and implementation of the ruling until the month of December, 2025, by which time the implementation had taken place. That Interested Party/applicant, therefore, falls victim to its own laches. 35.Having considered the application and all material placed before me in support and in opposition thereof. I find that the prayer for stay of execution has been overtaken by events, and the application therefore fails. 36.The application is dismissed. Each party shall bear its own costs of the application.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 21ST DAY OF MAY, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence ofAtika: Court AssistantKhatete h/b for Muma together with Ogonda for the Interested Party/Applicant.N/A for the PlaintiffNyamweya for the 1st Defendant.N/A for the 2nd, 3rd, 4th, 5th and 6th Defendants.