https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4380

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC CASE NO. 25 OF 2020*** ***CONSOLIDATED WITH NAROK ELC CASE NO. E009 OF 2022*** ***KAPSET TEA FACTORY…………………PLAINTIFF/RESPONDENT*** ***VERSUS*** ***JOHNSON KIPMUTAI CHERUIYOT*** ***& 11OTHERS……………………..……...DEFENDANTS/APPLICANTS*** **RULING** 1. The matter for determination is the ***Defendants***/***Applicants Notice of Motion Application*** dated ***17th April 2026*** , which is brought under ***Order 51 rule 1 and Order 22 rule 22 of the Civil Procedure Rules, Sections 3A & 6 (e) of the Civil Procedure Act Cap 21 laws of Kenya***, and all other enabling provisions of law, wherein the Applicants have sought for the following prayers: 2. ***Spent*** 3. ***THAT an order of Stay of Execution of judgment/decree delivered on 9th day of April 2026 in ELC Case No. 25 of 2020, consolidated with ELC Case No. E009 of 2022, be granted pending the hearing and determination of the intended appeal.*** 4. ***THAT the Plaintiff/Respondent has threatened to execute the decree immediately*** 5. ***THAT costs of this Application be in the cause.*** 6. The application is premised on the grounds set on the face of the application and also supported by the Affidavit of ***Johnson Kipmutai Cheruiyot*** sworn on the same day. 7. Among the grounds in support of the application are; ***that the applicant has an arguable appeal with high chances of success; that if the stay order is not granted, the applicant will suffer substantial and irreparable loss; the respondent has threatened to execute the decree immediately and that the application is filed without undue delay.*** 8. The Application is opposed by the Plaintiff/ Respondent, who through a Replying Affidavit sworn on the ***4th May 2026*** by one ***George Omondi Jong,*** the Factory Unit Manager of the Plaintiff/ Respondent. 9. The Plaintiff/Respondent averred that the Defendants/Applicants have refused to comply with the Judgment of the Court dated ***9th April 2026,*** wherein a declaration was made to the effect that ***Title No’s CIS MARA/OLOLUNGA/17055 & 17306*** lawfully belonged to the Plaintiff/Respondent and wherein the Defendant were also ordered to pay ***Ksh. 6,461,612/=*** as ***Special and General damages*** for damage on its trees. 10. The Plaintiff/Respondent further averred that the Defendant/ Applicant has put up new structures on the suit property, and also tilled the said suit land as evidenced by ***annexture “GC1”;*** that the present application is aimed at frustrating the Plaintiff/Respondent’s enjoyment of the fruits of its judgment. 11. Further, the Plaintiff/Respondent averred that the Defendants/ Applicants has come to court with ***unclean hands*** as he has proceeded to put up new structures on the ***suit property,*** and therefore, the Applicant has not met the conditions for grant of the orders sought. 12. It was his contention that the Plaintiff/ Respondent is a Limited Company with financial ability to compensate the Defendant/ Applicant herein incase his appeal succeeds in future. 13. **The Applicant also filed a subsequent application dated 30th April 2026**, wherein he seeks leave to amend the application dated ***17th April 2026,*** and file a ***Supplementary Affidavit, Stay of execution*** of the Judgment delivered on ***9/4/2026***, an ***interlocutory injunction restraining*** the Plaintiff/Respondent from ***alienating, leasing out, selling, transferring, cultivating, planting trees, fencing*** or ***interfering*** with the suit property till determination of the appeal. 14. The Defendant / Applicant further seeks maintenance of the ***status quo***, that this court revives ***Civil Suit No. ELC No. 270 of 2017*** pursuant ***to Order 27 Rule 7*** of the ***Civil Procedure Rules,*** That the ***Counter-claim*** dated ***28/3/2022,*** and injunction orders dated ***9/7/2019***, issued in ***ELC case No. 270 of 2017,*** be reinstated pending conclusion of ***Succession Citation Case No. E073 of 2024***, that the deceased plaintiff in ***Case No. 270/17,*** be substituted with his legal representative as identified in ***Succession Case No. E073 of 2025.*** 15. Further, the Defendant/Applicant further seeks for stay of execution in the present matter pending the determination of the ***revived mother*** case, ***extension of time*** to ***substitute*** the plaintiff, the injunction orders issued in ***ELC 270/2017,*** be deemed to subsist for the benefit of the Counter-claim until its final determination and costs. 16. The Defendant/Applicant also went further and filed a ***Notice of Preliminary Objection dated* 25th May 2026**, wherein he basically prays that the ***Respondent’s Replying Affidavit*** filed on ***20/5/2026*** was filed out of time, without leave of the court and should thus be expunged from the court’s record. 17. Further, the Defendant/Applicant filed two sets of submissions: the first set is dated ***25th May 2026,*** in support of his ***Preliminary Objection,*** and the second set is the one also dated ***25th May 2026,*** in support of his applications dated ***17/4/2026*** and ***30/4/2026.*** 18. Regarding the preliminary objection, the applicant has summarized his issues as follows: 19. ***Whether the respondent’s replying affidavit filed on* 25th May 2026 *is a nullity, illegal and an abuse of the court process.*** 20. ***Whether the respondent’s can completely file written submissions within the mandated 14 day window on 22nd May 2026 when there was no valid, legally surviving pleadings or replying affidavit on record to anchor those submissions*** 21. On the first issue the applicant submitted that a sworn affidavit is a solemn, legal document and that backdating the oath or the filing date to ***18th May 2026,*** when it was physically filed on ***25th May 2026*** constitutes ***a material misrepresentation***. He urged this court to expunge the Affidavit from the court record. 22. On the second issue, the Defendant/ Applicant submitted that on ***22nd May 2026,***when the Plaintiff/Respondent filed its written submissions, the court ordered time for filing the Replying Affidavit had already lapsed on ***(21st May 2026***), and no Replying Affidavit existed on record. 23. He further submitted that the Plaintiff/ Respondent’s submissions could not be filed in a vacuum without an underlying Replying Affidavit and so the said submissions should also not be considered. 24. Regarding the second set of submissions in support of the application dated ***17/4/2026 and 30th April 2026***, the applicant has framed the issues for determination as follows: 25. ***Whether the Applicant’s amendments dated 17/4/2026 and 30/4/2026 meet the legal threshold*** 26. ***Whether the Counter-claim is an extraneous issue that cannot be considered in this matter*** 27. ***Whether the Applicant has clean hands or is unlawfully frustrating the Respondents from enjoying the fruits of the judgment*** 28. ***Whether the Applicant is legally required to offer security for due performance under these circumstances.*** **APPLICANT’S CASE** 1. ***Whether the Applicant’s amendments dated 17/4/2026 and 30/4/2026 meet the legal threshold*** 2. On this issue, the applicant relies ***on Order 8 Rule*** ***3*** of the ***Civil Procedure Rules, and*** argued that the application dated ***30/4/2026*** does not introduce a completely new case, instead it seeks to include critical prayers, specifically ***injunction and a status quo order,*** which are necessary in preserving the subject matter, and that the Plaintiff/ Respondent will not suffer any prejudice that cannot be compensated by an award of costs. 3. ***Whether the Counter-claim is an extraneous issue that cannot be considered in this matter*** 4. On this issue, the Defendant/Applicant argued and submitted that a ***Counter-claim*** is ***independent of the main suit***, and that his ***Counter-claim*** ought to be heard under the right to fair hearing as enshrined under ***Article 50(1)*** of the Constitution of Kenya. 5. ***Whether the Applicant has clean hands or is unlawfully frustrating the Respondents from enjoying the fruits of the judgment*** 6. The Defendant/ Applicant submitted and argued that the Respondent has not proven that there are new structures on the land. He also argued that the Plaintiff/ Respondent is not prevented from enjoying the fruits of its Judgment because this principle only applies when a matter ***is completely and finally determined***. 7. It was the Defendant/Applicant further argument that there is a pending ***Counter-claim,*** and therefore there are no final fruits to be enjoyed. Lastly, he submitted that if not granted an i***njunction*** and ***orders of status quo***, he will suffer substantial and irreversible loss. 8. ***Whether the Applicant is legally required to offer security for due performance under these circumstances*** 9. The applicant submitted and argued that applicability of security is governed by ***Order 42 Rule 6*** of the ***Civil Procedure Rules***, and is specific for applications of stay pending appeal. It was his further submissions that the current applications are for ***interlocutory injunctions*** and ***amendments*** to protect property pending a trial/Counterclaim. There is no money decree or execution Order being appealed against, and that security is therefore not a legal condition for the orders sought **RESPONDENT’S CASE** 1. The Plaintiff/Respondent’s argument is that the Defendant/Applicant was ordered to ***vacate the suit properties*** knows as ***CIS MARA/OLOLUNGA 17055 & 17306,*** and that he has come to court with ***unclean hands*** because he has refused to heed to the judgement of this Court, and has thus come before court with ***unclean hands*** because he has engaged in further acts of construction on the suit property. The Plaintiff/Applicant annexed photographs of the new structures as annexture **‘GC-1’** under paragraph 7 of the Replying Affidavit. 2. Further, the Plaintiff/Respondent submitted and argued that the applicant’s application is meant to frustrate the Plaintiff from enjoying the fruits of its judgment, and that the Defendant/Applicant has not demonstrated that he ***will suffer substantial loss*** if the orders are not granted and that he has not offered any security for the ***Ksh. 6,461,612/=* ,** which he was ordered to pay to the Plaintiff/Respondent. 3. This court has carefully considered the applications herein, the annextures and written submissions, and finds the following issues arise for determination: 4. ***Whether the Applicant’s Notice of Preliminary Objection dated 25th May 2026 is merited*** 5. ***Whether the applicant is allowed to amend the application dated 17th April 2026 to include new prayers and file a supplementary affidavit*** 6. ***Whether the applicant can revive Civil Suit No. ELC No. 270 of 2017 and its counterclaim dated 28/3/2022*** 7. ***Whether the Applicant has met the test for grant of orders of stay of the judgment/decree delivered on 9th day of April 2026.*** 8. ***Whether the Applicant’s Notice of Preliminary Objection dated 25th May 2026 is merited*** 9. The Defendant/Applicant’s ***Notice of Preliminary Objection*** basically is to the effect that the Plaintiff/ Respondent’s Replying Affidavit filed on ***20/5/2026,*** was filed out of time, without leave of the Court, and should thus be expunged from the court’s record. 10. On this issue, the court will rely on ***Article 159(2d) of the Constitution of Kenya, 2010*** which provides that in exercising judicial authority, the courts and tribunals shall render justice without undue regard to procedural technicalities. This provision is among the ***transformative aspects*** of our ***2010 Constitution***. This provision aims to ensure that justice is not hindered by rigid adherence to procedural rules, thereby promoting fairness and equity in the judicial process. Further, the ***oxygen principle*** *as* stipulated in ***sections 1A & 1B of the Civil Procedure Rules*** permits this court to breathe life in matters that would otherwise collapse and render substantive justice. 11. The above provisions of ***SectionS 1A &1B***, allow this Court to admit the Plaintiff/Respondent’s Replying Affidavit out of time in order to afford the parties herein an opportunity to have their cases heard on merits. 12. Based on the foregoing analysis, this court proceeds to find and hold that, the Respondent’s Replying Affidavit is admissible and the ***Applicant’s Notice of Preliminary Objection*** dated ***25th May 2026*** is not merited, and the same is dismissed entirely with costs. 13. ***Whether the Applicant is allowed to amend the Application dated 17th April 2026 to include new prayers and file a Supplementary Affidavit*** 14. On this issue, the Defendant/Applicant relied on ***Order 8 Rule 3 of the Civil Procedure Rules****, and* argued that the Application dated ***30/4/2026*** does not introduce a completely new case, but instead it seeks to include critical prayers, specifically and **injunction** and a ***status quo*** order which are necessary in preserving the subject matter. 15. This Court has gone through the entire ***Order 8 Rule 3*** of the ***Civil Procedure Rules***, and it clearly provides for the manner in which a party can amend pleadings. Further, the court has gone through the entire ***Civil Procedure Rules 2010,*** and no where does it permit the amendment of applications: it only permits for amendment of pleadings. 16. The ***Notice of Motion Application*** dated ***17th April 2026,*** is post Judgment Application for ***Stay of execution***, and not a pleading as defined under ***Section 2*** of the ***Civil Procedure Act***. Therefore, it cannot be amended, as it is not among the documents contemplated under ***Order 8 of the Civil Procedure Rules.*** 17. The Court relies on the holding in ***Jaribu Credit Traders Limited v Fidelity Bank Limited & another (Commercial Case 647 of 2015) [2024] KEHC 3412 (KLR) (Commercial and Tax) (15 March 2024) (Ruling)*** where **PROF (DR) NIXON SIFUNA J** agreed with this position as follows: ***“……..an Application is not to be amended like the institutive/constitutive or primary pleadings referred to hereinbefore. Unlike those, it is strictly speaking not a pleading; and if a pleading, then it is a pleading sui generis. In fact, a pleading within a pleading.”*** 1. Based on the foregoing analysis, this court finds and holds that the Notice of Motion Application dated ***17th April 2026***, cannot be amended, and the proper procedure would be for the Applicant to withdraw the said application dated ***17th April 2026*** ,and file a fresh application incorporating all the prayers that he wished this Court to consider. 2. ***Whether the applicant can Revive Civil Suit No. ELC No. 270 of 2017 and its Counterclaim dated 28/3/2022*** 3. The Defendant/Applicant submitted and argued that his ***Counter-claim*** is independent of the main suit. Further, that his ***Counter-claim*** ought to be heard under the right to fair hearing as enshrined under ***Article 50(1)*** of the Constitution of Kenya. 4. On this issue, the Applicant appears to be pursuing inconsistent and speculative reliefs without a clear or coherent basis. In the application dated ***17th April 2026,*** the Applicant has sought for Orders for ***Stay pending appeal***, while in the subsequent application dated ***30th April 2026,*** he sought for the revival of ***Civil Suit No. ELC No. 270 of 2017***, together with ***the Counterclaim*** dated ***28th March 2022.*** These prayers are fundamentally distinct, yet the Applicant has failed to place before the Court any material capable of establishing the existence, status, or relevance of the alleged suit and Counter-claim, in an Application for stay of execution of a judgment. The applicant should have sought for revival of the suit mentioned above in the relevant court file, and not in a matter that is already concluded. How are the two matters related?. 5. Notably, the Applicant has not annexed any pleadings, proceedings, orders, or other documentary evidence relating to the purported matter. In the absence of such material, the Court is unable to ascertain whether the said ***suit*** and ***Counter-claim*** exist in the form alleged, or at all. A party who seeks the exercise of the Court’s discretion bears the obligation of placing before the Court sufficient material upon which that discretion may properly be exercised. 6. Accordingly, this court finds and holds that the prayer sought for **revival of another suit cannot** be made in an application for stay of execution of a judgment. The Applicant initially filed a post Judgment application, and this court is ***functus officio*** on substantive issues of the main suit, and cannot deal with revival of a suit and Counter-claim in an application for stay of a judgment, for a concluded matter. 7. Further, failure to annex the necessary documents in support of the prayer for revival of a suit is fatal to that limb of the application, and the said prayer cannot be allowed and is hereby declined, and dismissed entirely. 8. Consequently, the application dated ***30th April 2026*** is without merit, and not cannot be filed in a concluded matter and is consequently dismissed entirely with costs. 9. ***Whether the Applicant has met the test for grant of orders of stay of the judgment/decree delivered on 9th day of April 2026.*** 10. It is the considered view of this court that the substantive relief that ought properly to have been pursued by the Defendant/Applicant herein was ***a prayer for stay of execution***. Instead, the Applicant has engaged in ***speculative litigation*** by filing ***multiple applications*** that are ***frivolous, unmeritorious***, and ***lacking in legal foundation.*** 11. On this issue, the applicant submitted and argued that stay is meant to preserve the suit property. He also submitted that the Plaintiff/ Respondent may execute the Judgement herein thus occasioning him loss. 12. **Order 42 Rule 6(1) of the Civil Procedure Rules** provides as follows: ***“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 for sufficient cause stay 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 make such orders as may deem just and any party aggrieved by an order of stay made by the court from whose decision the appeal is preferred may appeal to the appellate court to have such orders set aside.”*** ***No order for stay shall be made in sub rule 1 unless*** 1. ***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.*** 2. ***Such security as the court may order for the due performance of such decree or order as may ultimately be binding him has been given by the Applicant.*** 3. It is clear from this provision of the Civil Procedure Rules that the fact that the Applicant has preferred an Appeal against a judgment of a court is not an automatic right to obtain orders of stay of execution; the two conditions in ***Sub Rule 2 of Order 42(6*) of the Civil Procedure Rules** must be met. In this regard, the Applicant herein has to demonstrate that he will ***suffer substantial loss*** if execution is done and at least ***give security*** that is equivalent to the subject matter to be executed. 4. It is trite that the power of the Court to grant stay of execution of a decree pending appeal is ***discretionary***. However, this discretion should be exercised judicially. See the case of ***Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)*** where the Court of Appeal held***:-*** ***“A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings. It is in the discretion of the court to grant or refuse a stay, but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory…”*** 1. Therefore, in order to succeed in an application for stay of execution or proceedings pending appeal, an applicant must demonstrate; 1. ***That the application has been brought without undue delay.*** ***b .That substantial loss may result unless the order of stay is issued, and;*** 1. ***The Applicant must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant.*** 2. The applicant’s averment that execution will occasion him loss is ***not sufficient*** to warrant the exercise of these discretionary powers. Execution is indeed a legal process aimed at enforcing the Court’s orders. 3. The case of ***Frank Mbete Aluda & another (both trading as Frank Creative) v Carlvo Technology Co. Ltd [2017] eKLR*** summarizes the threshold for grant of stay of execution as follows: *“****. . . the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security, and the application must, of course, be made without unreasonable delay***.” 1. In terms of strong grounds of appeal, the applicant has not annexed a ***Draft Memorandum of Appeal*** to allow this court appreciate whether they are arguable or not. However, the court has taken the liberty of perusing the Applicant’s ***Notice of Appeal*** dated ***16th April 2026,*** wherein he ***erroneously*** lists some of the grounds that he intends to rely in his appeal and this court finds them arguable. Be that as it may, the Court will leave it at that as this Court is not permitted to look into the merits of the appeal at this stage. 2. On ***substantial loss***, it is not in contention that the Defendant/ Applicant has alleged that he has structures on the suit land, and that eviction from thereon will entail demolishing those structures. However, the Plaintiff/Respondent averred and submitted that the Defendant/ Applicant put up these structures after the Judgment. The Applicant did not controvert these averments, and the court would have no reasons to doubt them. The averments and contentionby the Plaintiff/Applicant that these structures where erected post Judgement. 3. Substantial loss was defined in the case of ***Tropical Suppliers Ltd & Others Vs international Credit Bank Ltd [2004] 2 EA 331***, where the Court held that: - “***Substantial loss does not represent any particular mathematical formula, rather it is qualitative concept. It refers to any loss great or small that is of real worth or value as distinguished from loss or value without value or a loss that is merely nominal.”*** 1. The Plaintiff/ Respondent submitted that the Defendants/ Applicants have not demonstrated any substantial loss that they will suffer and moreover, no justification was tendered to the fact that the Plaintiff/ Respondent, which is a company will not be in a position to refund the decretal sum in the event the Appeal succeeds. See the case of ***David Mwenja V Jubilee Insurance Co. Ltd [2005] eKLR and the case of David Kihara Murage V Jacinta Karuana Nyangi & Another [2015] eKLR***. 2. Consequently, the court finds and holds that the Defendant/Applicant has not demonstrated that he will suffer substantial loss if execution proceeds while his appeal is pending. 3. Lastly, this Court has to balance the Applicant’s rights and that of the Plaintiff/Respondent to enjoy the fruits of its judgement, and the Defendant/Applicant right to appeal against a judgment he feels aggrieved by. It is evident that execution is a legal process recognized by law of enforcing a judgment. See the case of ***James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR*** 4. Accordingly, after considering of the instant Applications herein, and the responses by the Plaintiff/Respondent, the rival written submissions, the relevant provisions of law and cited authorities, the court finds and holds as follows; * 1. ***The Notice of Preliminary Objection dated 25th*** ***May 2026 and the Notice of Motion Application dated 30th April 2026 are found not merited and are hereby dismissed entirely with costs.*** * + 1. ***The Notice of Motion Application dated 17th April 2026 is also found not merited and is dismissed entirely with costs to the Plaintiff/Respondent*** ***It is so ordered.*** ***Dated, Signed and delivered virtually, at Narok this 9th day of July 2026.*** ***L. GACHERU*** ***JUDGE*** ***Delivered online in the presence of*** ***Elijah Meyoki..Court Assistant*** ***Mr Kipkorir holding brief for Mr Koech Plaintiff/Respondent*** ***John Kipmutai Cheruiyot Defendant/Applicant in person*** ***L. GACHERU*** ***JUDGE.***