https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3392

Omollo v Ngune (Environment and Land Appeal E006 of 2023) [2026] KEELC 3392 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3392 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E006 of 2023 E Asati, J June 4, 2026 Between Janet Akinyi Omollo Appellant and Maricus Otieno Ngune Respondent (Being an appeal from the Judgment and decree of Hon. C. N. C. Oruo P.M. delivered on the 14th day of July 2023 in Winam SPMELC (O.S) No. E010 OF 2022) Ruling 1.The application before court for determination is the Notice of Motion dated 25th February 2026 stated to have been brought pursuant to the provisions of Order 42 Rule 6, Order 51 Civil Procedure Rules and sections 1A, 1B, 3 and 3A Civil Procedure Act. 2.The application seeks an order that the Judgment and decree issued on 31st October 2024 and all subsequent orders be stayed pending the hearing and determination of the appeal in Kisumu Court Of Appeal Civil Appeal No. E015 of 2025 Maricus Otieno Ngune Vs Janet Akinyi Omollo. The application also seeks an order that the Appellant be condemned to pay the costs of the application. 3.The grounds upon which the application is brought are that the Appellant obtained a Judgement in her favour in the suit and is in the process of execution of the decree. That the applicant has preferred the appeal to the Court of Appeal. That if execution proceeds, the applicant stands to suffer great loss and damage, as he will be dispossessed of his parcel of land. That he has been in possession of the land for a period exceeding 18 years. That the applicant has a legitimate right to appeal and is willing to offer security for costs pending the appeal being heard and determined. 4.The application was supported by the averments in the Supporting Affidavit sworn by the applicant on 25th February 2026 and the annexures thereto. 5.The application was opposed by the appellant vide the Notice of Preliminary Objection dated 13th March 2026 and the Replying Affidavit sworn by Juliet Dima Advocate on 13th March 2026. 6.It was the case of the Respondent that the application for stay of execution is premised on an incompetent and invalid Notice of Appeal filed without the requisite leave of the court contrary to the law, that this court is divested of jurisdiction to entertain the application for stay of execution pending appeal, that as a copy of the Memorandum of Appeal is not attached to the application, it is impossible to determine if there is an arguable appeal as required under Order 42 Rule 6 of the Civil Procedure Rules and that the application constitutes a gross abuse of the process of the court and is intended to obstruct the appellant from enjoying the fruits of her Judgement.I have considered the application and the opposition thereto. 7.The judgment of this court whose execution is sought to be stayed is dated 31st October 2024. The judgment set aside the decree of the trial court and dismissed the respondent’s Originating Summons in the Lower Court. 8.The applicant avers that following the judgment, the appellant has instructed Auctioneers to evict him from the suit land. The suit before the trial court was based on the doctrine of adverse possession wherein the applicant claimed to have become entitled to the suit land by operation of the doctrine of adverse possession. While the trial court found in favour of the applicant, this court on appeal found that the applicant was not entitled to the suit land, allowed the appeal and dismissed the Originating Summons before the trial court. 9.Since the judgment of this court set aside the Judgment of the Lower Court, it means that the appellant is at liberty to take any steps to assert his rights/title against the applicant. 10.The applicant has challenged the judgment of this court at the Court of Appeal. 11.I find it to be in the interest of justice to stay the execution of the Judgment herein to allow the applicant to ventilate his appeal before the Court of Appeal. 12.The applicant has indicated that his willingness to provide security for the due performance of such decree or order as may ultimately be binding on him, as shall be ordered by the court as provided for in Order 42 Rule 6 Civil Procedure Rules. 13.For the foregoing reasons, I allow the application in the following terms:-a.An order of stay of execution of the judgment of this court dated 31st October 2024 together with all consequential orders is hereby granted pending hearing and determination of the appeal to the Court of Appeal on condition that the applicant deposits in court the sum of Kshs. 300,000/= (three hundred thousand only) being security within 45 days hereof, failing which the order of stay of execution granted herein shall lapse.b.Costs of the application are awarded to the Appellant.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 4TH DAY OF JUNE, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence ofAtika.. Court AssistantAtieno for the AppellantAriho for the Respondent/Applicant