https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4702

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. 233 OF 2012** **JOSEPH KIBUNGEI KUGUN …………………………..….... PLAINTIFF** **VERSUS** **GILBERT KIPKOECH SUM ………1ST DEFENDANT/RESPONDENT** **THOMAS CHERUIYOT MAIYO (**Suing as the legal representative of the estate of **KIMAIYO ARAP KEINO)………..2ND DEFENDANT/RESPONDENT** **AND** **JOHN CHERUIYOT KEINO …………1ST INTERESTED PARTY/APP** **GEOFFREY SUM ………………………2ND INTERESTED PARTY/APP** **SARAH JOB SAINA …………………..3RD INTERESTED PARTY/APP** **BENJAMIN SANG ……………………..4TH INTERESTED PARTY/APP** **KENNETH SANG ………………………5TH INTERESTED PARTY/APP** **JULIUS LIMO …………………………..6TH INTERESTED PARTY/APP** **PAULINA JEPTEKENY CHEPNGOK………7TH INTERESTED P/APP** **SAMWEL KIPSAINA TOO ……………8TH INTERESTED PARTY/APP** **JOSHUA KIPKEMBOI TUWEI ……..9TH INTERESTED PARTY/APP** ***(All suing as the legal representatives of the Estate of Kiptoo Chepngok)*** **RULING:** 1. The Applicants filed the present application vide a Notice of Motion dated 2nd April, 2025 seeking the following orders: - * 1. Spent. 2. That leave be granted to the firm of Maritim & Company Advocates to come on record after judgment to represent the Interested Parties/Applicants. 3. That the honourable court be pleased to enforce the judgment dated 18th November, 2022 directing that the parties do share the subject parcel L.R. No. 8313 according to the register and transactions therein as follows: - 2. Joseph Arap Kogo – L.R. 3712 = 47.5 Acres 3. Kiptoo Arap Chemwok – AR 37111 = 89.4 Acres 4. Kugun Arap Barno – AK 3710 = 89.4 Acres 5. Kimaiyo Arap Keino – AR 37110 = 89.4 Acres 6. Kipkemboi Arap Ngeny – AR 37112 = 89.4 Acres 7. Gilbert Kipkoech Sum – AR 317114 = 283.1 Acres 8. Kiprono Arap Saina – AR 37115 = 89.4 Acres 9. Kiplagat Arap Sinyei – IR 3116 = 119.2 Acres * 1. That the County Land Surveyor Uasin Gishu to carry out survey and OCS Ziwa Police Station to provide security and ensure that law and order prevails at the subject parcel during the eviction. 2. That the honourable court do issue such other order or consequential reliefs to ensure that the judgment is implemented and peace and order maintained at all times on the suit property above. 3. That costs of this application be in the cause. 10. The application is premised on 8 grounds on the face thereof and supported by the Affidavit of Joseph Rono, an administrator of the estate of Kiprono Arap Saina, dated and sworn on even date. 11. It is deponed that vide the judgment delivered on 18th November, 2022, the honourable court dismissed the plaintiff’s suit and the 2nd defendant’s counter-claim and directed that the parties do share the suit parcel of land according to the register and the transactions therein as follows; - 1) Joseph Arap Kogo – L.R. 3712 = 47.5 Acres 2) Kiptoo Arap Chemwok – AR 37111 = 89.4 Acres 3) Kugun Arap Barno – AK 3710 = 89.4 Acres 4) Kimaiyo Arap Keino – AR 37110 = 89.4 Acres 5) Kipkemboi Arap Ngeny – AR 37112 = 89.4 Acres 6) Gilbert Kipkoech Sum – AR 317114 = 283.1 Acres 7) Kiprono Arap Saina – AR 37115 = 89.4 Acres 8) Kiplagat Arap Sinyei – IR 3116 = 119.2 Acres 1. It is his claim that no appeal has been preferred against the said judgment delivered on 18.11.2022 neither are there any orders for stay of execution in place. 2. The applicant avers that the effect of the said judgment was to adjudge that the applicants are entitled to their share as specified in the judgment and are in turn entitled to ownership and exclusive possession thereof. It is therefore his contention that the respondents’ continued occupation of the portion allocated to the applicants is unlawful and illegal. 3. It is further his claim that as a result of the respondents’ continued illegal and unlawful occupation of the suit land they ought to vacate and/or be evicted from the land to enable the applicants enjoy the fruits of their judgment. 4. It is also his contention that the judgment of the court neither mentioned nor directed the applicability of section 152A to 152G of the Land Act during the eviction and thus argues that the said provisions of the law are not applicable in the matter. 5. In conclusion, he maintained that it is in the interest of justice that the present application be allowed and for the orders sought to be granted. 6. The application was opposed. The 4th Interested Party/respondent filed a Replying Affidavit sworn and dated 14th May, 2026 in response to averments made in the present application, on his own behalf and on behalf of the 5th and 6th Interested Parties. 7. The 4th IP/respondent averred that the applicants had improperly invoked the jurisdiction of this court by seeking to obtain final execution orders, including an eviction and enforcement of proprietary rights through a Notice of Motion, which is not the legally sanctioned procedure for execution of a decree. 8. It is his claim that execution of a decree requires a mandatory and strict compliance with the laid down procedure and must be preceded by the formal extraction and approval of a decree, the invocation of the appropriate mechanisms under the law relating to execution and compliance with all procedural safeguards to ensure fairness and due process. He maintained that there was no evidence of a duly extracted decree and demonstration of the steps taken towards lawful execution. 9. With regard to the eviction orders sought, it is deponed that the same are drastic and intrusive and must be considered with utmost caution and in strict adherence to the law. The 4th Respondent thus avers that the same cannot be issued in the absence of a lawful execution process. That the applicants must issue lawful notices to the interested parties and fully comply with the procedural requirements governing eviction. 10. It is also the respondents’ claim that the applicants have not made full disclosure of material facts, particularly on the existence of ongoing appellate proceedings vide the proceedings known as Eldoret COACAPPL NO. E024 OF 2026 seeking to challenge the entire judgment sought to be enforced. They further claim that there is a pending application for stay of execution at the Court of Appeal and which in turn goes to the root of the present application. 11. It is their contention that where there is an appeal pending, a trial court must exercise restraint so as not to pre-empt the appellate process and as a result render the appeal nugatory as well as occasion irreversible prejudice. That the interested parties’ families took possession of the suit property in 1968 and have remained in occupation to date. He gave particulars of the nature and duration of the said possession and occupation as well as developments made therein. 12. The respondents further state that the eviction orders sought cannot issue in respect of unascertained, undefined or speculative land and that execution of the same would lead to confusion, conflict and injustice. 13. In conclusion, the respondents urged the court to find that the present application is thus misconceived, incompetent, procedurally defective and should therefore be dismissed in its entirety with costs to the interested parties. 14. The present application was canvassed by way of written submissions. The decree holders/applicants filed their submissions dated 01.10.2025 together with the authorities cited, which I have read and duly considered. 15. From a perusal of the court record and the online filing platform, I have not seen any submissions filed on behalf of the 4th – 6th interested parties/respondents. However, I do note that the plaintiff/respondent has filed submissions dated 19.05.2026, despite not filing any replying affidavit in response to the present application. **Analysis and Determination:** 1. I have carefully considered the Application and the grounds therein, the Supporting Affidavit, the replying affidavit in response as well as the rival submissions in totality. 2. Consequently, it is my considered view that the issues arising for determination are as follows: - 3. *Whether the present application is merited*. 4. *Who shall bear the costs of the present Application.* 5. Having identified the above issues for determination, I will now proceed to discuss the same as hereunder. **Whether the present application is merited;** 1. The applicants in the present application are seeking the execution and/or enforcement of the judgment of this court delivered by Hon. Justice A.O. Ombwayo on 18th November, 2022 and the resultant decree issued thereto on 30th July, 2024. 2. The basis of the applicants’ application is that respondents have continued and/or remained in illegal and unlawful occupation of portions of the subject suit land which vide the judgment of the court was declared to be lawfully entitled to them, despite the existence of the valid court orders and without any order for stay of execution. 3. The respondents on their part have claimed that the said eviction orders sought cannot and should not be granted in the absence of a duly extracted decree and with strict adherence of the procedural requirements. 4. It is further their contention that the applicants have failed to disclose to this court the existence of a pending proceedings in the appellate court vide the proceedings known as Eldoret COACAPPL NO. E024 of 2026, seeking to challenge the entire judgment which is sought to be enforced. That in addition, there is a pending application for stay of execution of the judgment of this court and which they contend goes to the root of the present application, which if allowed stands to render the appeal nugatory. 5. It is common ground that the dispute between the parties herein was heard and substantively determined vide the Judgment issued on 18.11.2022 by my predecessor, Hon. Justice A.O. Ombwayo and the resultant decree issued thereto on 30.07.2024. Despite the respondents stating that the applicants have not extracted any decree, from a perusal of the court record, there is proof of a decree which was properly extracted, signed and sealed and issued on the 30th of July, 2022 by the Deputy Registrar, ELC Court. The said assertions are therefore misleading and are hereby disregarded. 6. For avoidance of doubt, the judgment of 18.11.2022 granted the following orders: - 7. That the suit by the plaintiff and the counter-claim by the 2nd defendant be and are hereby dismissed with no orders as to costs as the suit revolves on the land acquired by people who set out as friends to purchase property and appear to be neighbours. 8. That the claim by the 3rd interested party against the 1st and 2nd interested parties is also dismissed as the late Kimutai Arap Saina never complained of the transfer of his share to Gilbert Sum for Conversion or trespass. 9. That this court directs that the parties do share the suit parcel according to the register and transaction therein as follows: - 10. Joseph Arap Kogo – L.R. 3712 = 47.7 Acres 11. Kiptoo Arap Chemwok – AR 37111 = 89.4 Acres 12. Kugun Arap Barno – AK3710 = 89.4 Acres 13. Kimaiyo Arap Keino – AR 37110 = 89.4 Acres 14. Kipkemboi Arap Ngeny – AR 37112 = 89.4 Acres 15. Gilbert Kipkoech Sum – AR 317114 = 283.1 Acres 16. Kiprono Arap Saina – AR 37115 = 89.4 Acres 17. Kiplagat Arap Sinyei – IR3116 = 119.2 Acres 18. That for avoidance of doubt parties are directed to bear own costs. 19. Order 22 of the Civil Procedure Rules provides for the execution of decrees and orders arising out of a judgment issued in determination of a suit. Order 22 Rules provides that: - ***6. Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A:.......”*** 1. In the present case, it is not in dispute that there are no orders for stay of execution issued by this court or by the court of appeal, staying the execution of the judgment herein. Further, no orders have been issued either by this court or by the court of appeal either to set aside, vary and/or review the judgment delivered on 18.11.2022 and the resultant decree issued on 30.07.2024. 2. While the respondents do contend that there is a pending appeal vide the proceedings known as Eldoret COACIVAPP NO. E024 of 2026 and a pending application for stay in the appellate court, it is trite and settled law that the filing and existence of an appeal at the court of appeal shall not automatically operate as a stay of execution of the judgment and decree of a trial court. 3. Consequently, in the absence of any valid orders for stay of execution, issued either by this court or the appellate court and/or any orders setting aside, varying and reviewing the orders of this court issued vide the decree dated 30.07.2024, it is the finding of this court that nothing stops the Decree Holders/Applicants herein from executing/enforcing the judgment and decree issued in their favor. 4. Further, this court has taken the liberty to critically look at the said judgment dated 18.11.2022 issued by my predecessor, Hon. Justice A.O. Ombwayo and while it is evident and clear from the judgment that an eviction order was not granted; I do note that the effect of executing and enforcing the said judgment and decree may result in the displacement and/or eviction of respondents or persons in occupation of the affected parts of the subject suit parcel. 5. Consequently, this court finds that there is need for the Applicants/Decree holders to strictly comply with the provisions of section 152E of the Land Act in the event of any eviction. 6. In view of the foregoing, it is the finding of this court that the present application is merited. **Who shall bear the costs of the present Application;** 1. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. 2. However, taking the circumstances of the present case into consideration, it is the finding of this court that each party should bear its own costs of the present application. **CONCLUSION:** 1. In view of the foregoing, it is the finding of this court that the present application vide the Notice of Motion dated 14th November, 2025 is **merited** and is hereby **allowed** in terms of **prayers no. 3 and 4**. Each party to bear their own costs of the application. 2. Further, the Applicants/Decree holders are hereby ordered and/or directed to strictly comply with the provisions of Section 152E of the Land Act in the event of any eviction. 3. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** this **23rd day** of **JULY, 2026.** **HON. C. K. YANO** **JUDGE** Ruling delivered in the virtual presence of: - Ms. Ndinya for the Plaintiff/Respondent Mr. Maritim for the Applicants. Mr. Mitei for 4th, 5th & 6th Interested parties. No appearance for Defendants and the 1st, 2nd, 3rd & 7th -9th Interested parties. Court Assistant – Laban