https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4050

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. 550 OF 2012** **FORMERLY HCCC No. 145 OF 2009** **ALICE KAPKIYAI** …………………………….. **PLAINTIFF/RESPONDENT** **VERSUS** **HELLEN JEPTANUI RONGOEI** ……………. **DEFENDANT/APPLICANT** **AND** **KIBWAMBOK KIRWA** ………………………. **THIRD PARTY/APPLICANT** **RULING:** 1. This ruling is with respect to two applications by the Defendant herein and the Third party dated 3rd February, 2026 and 12th February, 2026 respectively. 2. **Notice of Motion dated 3rd February, 2026;** 3. This first application was filed by the Defendant/Applicant and she seeks the following orders:- 4. Spent 5. Spent 6. THAT this Honorable Court be pleased to stay execution pending hearing and determination of the intended appeal; 7. THAT this honourable court be pleased to stay execution pending hearing and determination of the Appeal lodged at the Court of Appeal in Eldoret Court of Appeal Civil Appeal No. E015 of 2026 arising out the judgment delivered on 13/11/2025 in Eldoret ELC No. 550 of 2012 Alice Kapkiyai vs Hellen Jeptanui Rongoei and Kibwambok Kirwa. 8. THAT costs of this application be in the cause. 9. This application is premised on the grounds set out in the motion and is grounded on the Defendant’s Supporting Affidavit of the same date. The Defendant deponed that judgment in this suit was delivered on 13/11/2025 in favour of the Plaintiff. That she was aggrieved with the judgment as it allowed the Plaintiff to evict them from their land. Thus she instructed her advocate to file a Notice of Appeal, being Eldoret Court of Appeal No. E015 of 2026. The Defendant is apprehensive that the Plaintiff may commence execution against her from the suit land which has been her home for over 20 years. 10. The Defendant claims that she has since obtained proceedings and filed a Memorandum of Appeal. She averred that her Appeal has overwhelming chances of success, and that she was willing to abide by any terms and conditions set by the court for allowing her application. She claims that she stands to suffer irreparable loss if execution and/or eviction is not stayed. She deponed that her application had been made in good faith and without undue delay. That the Plaintiff will suffer no prejudice if the application is allowed. 11. The Application is opposed by the Plaintiff through her Replying Affidavit sworn on 26th February, 2026. The Plaintiff claims that the present application is an attempt to deny her the fruits of her judgment. She deponed that she has been waiting for almost 17 years to have the case determined, thus any further delay is prejudicial given her advanced age. She deponed that the Defendant had not met the principles governing the grant of stay orders pending appeal provided under Order 42 Rule 6. 12. The Plaintiff claims that the balance of convenience tilts in her favour. She pointed out that litigation must come to an end, and urged that since justice delayed is justice denied, the court should allow her to proceed with execution to realise the decree. The Plaintiff urged that the court has unfettered jurisdiction to disallow the application. She asked the court to exercise its jurisdiction in her favour and dismiss the application with costs. 13. **Notice of Motion dated 12th February, 2026** 14. The second Application is brought by the Third Party/Applicant, who seeks the following orders from this court:- 15. Spent 16. THAT there be a stay of execution of the judgment and all consequential orders issued on 13th November 2025 in Eldoret ELC Case No. 550 of 2012, pending the hearing and determination of the intended appeal. 17. THAT costs of this Application abide the outcome of the appeal. 18. The Application is supported by the grounds on the face of the motion as well as the Third Party’s Supporting Affidavit of even date. The Third Party conceded that the judgment of this court was delivered on 13/11/2025 declaring that Land Parcel No. Nandi/Mutwot/43 belonged to the Plaintiff and condemning the him and the Defendant to costs. Being aggrieved, he lodged a Notice of Appeal dated 13/11/2025 expressing intention to appeal against the entire judgment, and has since applied for typed and certified proceedings. 19. The Third Party avers that the intended appeal raises serious questions of law and fact. That unless a stay of execution is granted, the Plaintiff shall be at liberty to execute the judgment, including transfer, subdivision or alienation of the suit property, thereby permanently altering the character of the land. That as a result, he will be exposed to substantial and irreparable loss including loss of possession, occupation and proprietary interests which cannot be adequately compensated by damages. He further claims that he stands to be dispossessed of land he has occupied and claimed lawfully for a considerable period. 20. The Third Party averred that once a third party’s rights crystallise, the intended appeal shall be rendered nugatory. He deponed that the application had been made timeously, without undue delay and in good faith. He averred that he was ready, willing and able to abide by any reasonable conditions on security set by the court for the due performance of the decree. He urged that it is in the interest of justice that status quo be maintained by granting the stay of execution pending hearing and determination of the intended appeal. 21. The Plaintiff once more opposed this second application through a Replying Affidavit dated 17th April, 2026. I have read the said replying Affidavit and note that the contents thereof are a replica of the earlier replying affidavit sworn by the Plaintiff on 26th February, 2026 summarised above, thus I see no need to repeat the same here. **Submissions:** 1. On the request of the parties, the court directed that the two applications be heard together and they be canvassed by way of written submissions. As at the time of writing this ruling, only the Defendant had filed submissions dated 14th April, 2026 in support of her application. Neither the Plaintiff nor the Third Party had filed any submissions. **Analysis and Determination:** 1. I have carefully considered the two applications, the responses filed thereto and the submissions filed by the Defendant herein. It is my view that the issues for determination are:- 2. *Whether the applications meet the threshold for granting the orders of stay of execution of the judgment pending the intended Appeal; and* 3. *Who shall bear the costs of the two applications?* 4. **Whether the applications meet the threshold for granting the orders of stay of execution of the judgment pending the intended Appeal;** 5. The substantive prayer in the two applications subject of this ruling is for an order of stay of execution of the judgment delivered on 13th November, 2025. 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 Applicant, who is exercising the undoubted right of appeal, are safeguarded and the appeal if successful, is not rendered nugatory. 6. Stay of Execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows:- ***6. Stay in case of appeal [Order 42, rule 6]*** ***(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.*** ***(2) No order for stay of execution shall be made under subrule (1) unless—*** ***(a) 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*** ***(b) 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.*** 1. All the conditions underscored in Order 42 Rule 6 of the Civil Procedure Rules are as important and must be considered in an inextricable manner. The Applicants herein need to satisfy the Court of the existence of the following conditions before they can be granted the stay orders:- 2. Substantial loss may result to the applicants unless the order is made. 3. The applications have been made without unreasonable delay, and 4. Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicants have been given by the applicants. 5. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Applicant with those of the Respondent who holds a favourable order or decree. Put differently, a court must not only consider the Applicants right to pursue their appeal, but must also weigh this right against the successful litigant, who should not be deprived of the fruits of their judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. 6. In determining the two applications herein, the Court must first consider whether the Defendant and the Third Party, being the Applicants herein, have met all the pre-conditions for the grant of an order of stay of execution. 7. The first condition to be met is that the Applicants must demonstrate that they stand to suffer substantial loss if the stay of execution order is not granted. Substantial loss has been held to be the cornerstone of the jurisdiction of the Court in granting stay of execution. In the case of ***Kenya Shell Limited vs Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988)l KAR 1018***, the Court of Appeal stated that:- ***“It is usually a good rule to see if Order 41 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay.”*** 1. Similarly, in ***RWW vs EKW (2019) KEHC 6523 (KLR)***, the court had this to say regarding substantial loss:- ***“I have proceeded to determine whether the conditions stipulated for grant of stay have been met. On whether the appellant will suffer substantial loss, I am reminded of the sentiments of Gikonyo J in James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR.*** ***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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein vs .Chesoni [2002] 1KLR 867, and also in the case of Mukuma vs. Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:*** ***“…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.”*** ***11. Demonstrating what substantial loss is likely to be suffered, is the core to granting a stay order pending Appeal. Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum. – See the decision of Musinga J (as he then was) in the case of Daniel Chebutul Rotich& 2 Others v Emirates Airlines Civil Case No. 368 of 2001.”*** 1. In an application for stay, therefore, it is not enough for a party to merely claim that substantial loss will result. It must be shown in specific details and particulars that they stand to suffer substantially if the orders sought are not granted. Following the principle that he who alleges must prove, the onus of demonstrating substantial loss will occur if the order of stay is not granted lies with the Applicant. The Applicants herein were required to show that they will be totally ruined in relation to the appeal if execution of the judgment delivered on 13th November, 2025 is not stayed. 2. As regards substantial loss, the Defendant contends that the judgment permits the Plaintiff to evict her from the suit land, upon which members of her family have been buried. She therefore argues that, unless an order of stay is granted, the Plaintiff may proceed with execution, resulting in her eviction from the suit land which she has occupied for over twenty (20) years. The Defendant further avers that such eviction would occasion her substantial loss, particularly in light of the pending appeal, which she maintains has a high likelihood of success. 3. The Third Party on his part also claims that unless a stay of execution is granted, the Plaintiff will be at liberty to proceed with execution of the judgment, including transfer, subdivision or alienation of the suit property, thus permanently altering the character of the land. The Third Party claims that execution will expose him to substantial loss including loss of possession, occupation and his proprietary interests, which he says cannot be compensated by damages. The Third Party also claims that he has occupied the suit land for a considerable period, and if his rights crystallise, his appeal will be rendered nugatory. 4. In her two Replying Affidavits, the Plaintiff disputes the contention that the Defendant and the Third Party are likely to suffer substantial loss if the orders sought herein are not granted. She avers that she has waited for a considerable period to enjoy the fruits of her judgment and that any further delay in its execution would occasion her significant prejudice. 5. In this instance, it is not in dispute that the judgment of this court delivered on 13th November, 2025 was in favour of the Plaintiff. The court in its said judgment issued the following reliefs:- ***“a. A declaration be and is hereby made that the suit parcel of land known as Nandi/ Mutwol/43 exclusively belongs to the plaintiff, and that by virtue of its ownership the plaintiff should have the sole and exclusive use of the same.*** ***b. The Defendant be and is hereby directed to vacate and/or cede vacant possession of the suit land No. Nandi/Mutwol/43 or any portion thereof within a period of 90 days from the date of this judgment. In default thereof, an Order of Eviction shall automatically issue without further reference to this court and to be executed by the Court bailiff.*** ***c. An Order of Permanent Injunction be and is hereby issued against the Defendant, her agents, servant and any other person(s) claiming through her, barring them from trespassing or from further encroachment, or from doing any constructions in the said parcel of land No. Nandi/Mutwol/43.”*** 1. From the reliefs granted in the judgment delivered on 13/11/2025, it is evident that the Defendant and the Third Party are required to vacate the suit land. In the event that they fail to do so voluntarily, the Plaintiff is at liberty to enforce the decree through eviction. A reading of the judgment further reveals that the Plaintiff is, and has at all material times been, the registered proprietor of the suit land. Although the Applicants allege that members of their family were buried on the land, no evidence has been placed before the Court to substantiate that claim. Nevertheless, the Plaintiff admits that the Defendant entered and took possession of the suit land in 2006. It is therefore not disputed that the Defendant has been in occupation of the suit land for approximately twenty (20) years. 2. Indeed, if execution is allowed to proceed, nothing would preclude the Plaintiff from evicting the Defendant and the Third Party. There is no doubt that at its core, the appeal challenges ownership of the suit property, being land parcel No. Nandi/Mutwol/43. Accordingly, should the Defendant and the Third Party be evicted at this stage, there is a real possibility that they may lose whatever proprietary interests they claim in the land, as evidenced by their possession. Such an outcome would likely render the appeal nugatory, and any attempt to reverse it would inevitably be attended by considerable difficulty and expense. 3. I note that aside from claiming that the Applicants have not established the loss they are likely to suffer, the Plaintiff has not denied that she does intend to execute the judgment. While the Plaintiff has every right to enjoy the fruit of her long awaited judgment, the Applicants equally have a constitutionally protected right to pursue their appeal without the threat of execution. This right to appeal encompasses that such appeal shall not be rendered nugatory. 4. As to the merits of the intended appeal, the same is not a decisive factor in an application for stay of execution since the intended appeal is not before this court. However, in ***James Wangalwa & Another v Agnes Naliaka Cheseto (supra)***, the Court held that it is undesirable for execution to proceed where an appeal, which is not frivolous, is pending before the Court. Conversely, a frivolous appeal cannot, in practical terms, be rendered nugatory. In view of the foregoing, I find that substantial loss is likely to be occasioned if the judgment is executed at this stage. 5. The second condition for the grant of an order of stay of execution is that the application must be made without undue delay. Judgment herein was delivered on 13th November, 2025. The first application was filed on 3rd February, 2026, while the second application was filed on 12th February, 2026. Both applications were therefore made within approximately two months of the delivery of judgment. In the circumstances, I find that the applications were made without undue delay. 6. I now turn to the final condition, namely the issue of security for the due performance of the decree. The law requires that a Party seeking an order of stay of execution must provide such security for the due performance of the decree or order as may ultimately be binding upon them. The purpose of security was further underscored in the case of ***Arun C Sharma vs Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 Others (2014) eKLR*** Justice Gikonyo the Court stated that: ***“(11). The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor… Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”*** 1. There has been no express proposal as to the security to be furnished by the Defendant and the Third Party herein. However, they have deponed that they are ready and willing to abide by any conditions that the Court may impose with respect to security. Notably, it is the Court that determines the nature and sufficiency of such security upon granting an order of stay, to ensure due performance of the decree and to secure any attendant costs. Moreover, in ***Focin Motorcycle Co. Limited vs Ann Wambui Wangui & another (2018) KEHC 8358 (KLR)***, the court explained that:- ***“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”*** 1. It is therefore sufficient for the Applicants to depose that they are ready and willing to furnish security. Having expressed such willingness, the Defendant and the Third Party have satisfied the final limb of the requirements for an order of stay of execution. 2. On that basis, I hereby grant a stay of execution of the judgment and decree of this Court delivered on 13th November, 2025 pending the hearing and determination of the intended appeals by the Defendant and the Third Party. However, the stay shall be subject to the conditions set by the court herein. 3. The court has noted the age of the matter herein, seeing as it was initially filed in the High Court in the year 2009, way before this court was even established and operationalised. The court also takes into account the fact that there will be delay occasioned on the Plaintiff in executing her judgement. 4. For these reasons, the court is of the view that the Applicants herein will each deposit the sum of KShs. 750,000/- in a deposit interest earning account held by the Advocates for the parties herein. This should be sufficient security for the grant of the order of stay of execution. Failure to abide by the above condition, the stay of execution order granted herein shall automatically lapse. 5. **Who shall bear the costs of the two applications?** 6. Costs ordinarily follow the event, and the successful party in litigation is generally entitled to costs thereof pursuant to Section 27(1) of the Civil Procedure Act, which provides as follows:- ***27. Costs*** ***(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. However, the Court retains discretion to determine whether or not to award costs, and where it declines to do so, it is required to record the reasons for such decision. This is the essence of the proviso to Section 27(1) above. 2. The Defendant and the Third Party have succeeded in their application for stay of execution. However, it is evident that the grant of the orders sought will delay the Plaintiff from enjoying the fruits of her judgment, which she has long awaited. In the circumstances, I find no justification for further burdening her with the costs of these applications. Accordingly, each party shall bear their own costs. **Orders:-** 1. The upshot is that the two applications dated 3rd February, 2026 and 12th February, 2026 are merited. The same are determined as follows:- 2. There shall be a stay of the execution of the judgment and decree issued on 13/11/2025 in Eldoret ELC No. 550 of 2012; Alice Kapkiyai vs Hellen Jeptanui Rongoei and Kibwambok Kirwa, pending the hearing and determination of the Appeal lodged at the Eldoret Court of Appeal being Civil Appeal No. E015 of 2026 as well as the Appeal by the Third Party. 3. The stay granted at (a) above shall be conditional on the Applicants in the two applications, the Defendant and the Third Party herein, shall within 45 days from the date hereof, deposit the sum of KShs. 750,000/- each into a joint interest earning account held by the Advocates for the parties herein, failure to which the stay of execution granted herein shall automatically lapse. 4. There shall be no order as to costs. 5. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **2ND** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the presence of:- Ms. Isiaho for the Plaintiff. Ms. Makori holding brief for Mr. Nyachiro for the Defendant. No appearance for the third Party Court Assistant - Laban.