https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4994

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLA CASE NO. E099 OF 2025** **SHADRACH KASINGA::::::::::::::::::::::::::::APPELLANT/RESPONDENT** **VERSUS** **JOYCE MUKULU MULANDI::::::::::::::::1ST RESPONDENT/APPLICANT** **MESHACK NYOLO MULANDI::::::::::::::::::::::::::::::::2ND RESPONDENT** **MUENDO MALUTA:::::::::::::::::::::::::::::::::::::::::::::::3RD RESPONDENT** **RULING** The first application is dated 15th December 2025 and is brought under Sections 1A, 1B, 3 and 3A, of the Civil Procedure Act, Order 40 rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 & Sections 4 (1) (a), 5 (c), 24, 27 (i), 28 (1) and (6) of the Contempt of Court Act seeking the following orders; 1. That the application be certified urgent for hearing and service thereof be dispensed within the first instance. 2. That the Appellant/Respondent be compelled to attend court in person during the inter parties hearing of this application. 3. That the Appellant/Respondent be committed to civil jail for a period of 6 months or such period to be stated by court or they be punished as the court shall decide for disobeying the Judgement of the trial Court delivered on 28th October, 2025. 4. That additionally, this Court issues eviction orders against the Appellant/Respondent herein. 5. That the OCS Mbumbuni Police station do assist with the compliance of this Honourable Court's orders. 6. That the Appellant/Respondent be condemned to pay costs of this application. It was based the following grounds that on 28th of October, 2025, the court delivered a judgment in the following terms among others. That a declaration is hereby issued that the purported sale transaction of Land Parcel Number Kisau/Usalala/346 between the 1st Defendant (the Respondent herein) and the 2nd Defendant (the 2nd Respondent herein) is null and void for violating the mandatory provisions of the Land Control Act (Cap 302). That an order of permanent injunction is hereby issued restraining the 1st Defendant (2nd Respondent herein, his agents, servants or anyone acting under his instructions from registering or finalising the transfer of Land Parcel Number Kisau/Usalala/346 to the 2nd Defendant (the Appellant herein) until the filing of a relevant suit for division of matrimonial property. That the injunction orders shall remain in force for only six months, after which the court shall discharge them if no such suit is filed. Should the 1st Defendant (the 2nd Respondent herein) shall be at liberty to deal with the property as he wishes. That the Counsel for the Appellant/Respondent was present in Court when the judgment was delivered. That the aforementioned Judgement has never been set aside. That the Appellant/Respondent has since wilfully disobeyed the said order and continues to wilfully disobey it as he has fenced the suit property and carry out cultivation on the suit property despite there being a valid court judgment in favour of the 1st Respondent/Applicant herein. That the Appellant/Respondent being dissatisfied with the Judgement of the lower Court has since filed the Appeal herein before this Honourable Court. That the actions of the Appellant/Respondent are unlawful and are calculated with an aim to embarrass the dignity and integrity of this honourable court. That in the circumstances, it is in the interest of justice that the orders being sought be granted. The second application is dated 16th December 2025 and is based under Order 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya Order 42 rule 6 (1), Order 51 of the Civil Procedure Rules 2010 & Articles 48 and 159 of the Kenya Constitution 2010 seeking the following orders: - 1. That the matter be Certified as Urgent and to be heard Ex-parte on priority basis in the first instance. 2. That there be a Stay of Execution of the Judgement of the Court dated 28th October, 2025 in MCCC No. 377/2013 Machakos pending hearing and determination of this application. 3. That there be a Stay of Execution of the Judgement unconditionally or upon such reasonable terms pending the hearing and determination of the Applicants Appeal. 4. That the costs of this application be provided for. The application is based on the grounds that the Honourable Charity Olouch (Chief Magistrate delivered a Judgement in MCCC 377 OF 2013, in a land matter on 28/10/2025, and gave conditions on the Judgement. The applicant being dissatisfied with the Judgement has filed the Appeal No. E272 of 2025. That the Applicant resides on the suit land known as Kisau/Usalala/346 and since 2011, and has developed the land. The Honourable Magistrate did not declare the rights of the 1st Respondent on the land and directed her to file a matrimonial Property Case within six (6) Month for ownership rights to be determined. The 1st Respondent has filed an urgent application dated 15th December 2025 seeking for orders of eviction of the applicant despite the 1st Respondent rights to the land having not been determined, and notwithstanding the pending Appeal. I have considered the application and submission therein. Applications for stay pending appeal are guided by the provisions of Order 42 Rule 6 which provides as follows; Order 42 Rule 6 (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. The Applicants need to demonstrate three elements. There must be demonstration that substantial loss will result if stay is not granted; secondly, the application must be made without unreasonable delay; and finally, there needs to be security for the due performance of the decree. Apart from the three elements, the essence of an application for stay pending appeal is aimed at preserving the subject matter of litigation to avoid a situation where a successful Appellant only gets a paper judgment. That said, it must be appreciated that the Respondent is a successful litigant who is entitled to benefit from the fruits of the judgment. The interests of both parties therefore need to be balanced as was stated by the Court of Appeal in the case of Reliance Bank vs Norlake Investments Ltd (2002) 1 EA 227**.** Let me first start with the issue of delay. In the judgement was delivered and dated 25th October 2025 in ELC No. 377 of 2013 by Hon. Charity Oluoch (Mrs) (Chief Magistrate). She issued orders inter alia that the injunction was to remain in force for six months pending the filing of a relevant suit for the subdivision of matrimonial property and indefault the same shall be discharged. The court further granted 30 days of execution as per the court record. This application is dated 16th December 2025 after the 1st Respondent/Applicant filed an application for contempt dated 15th December 2025. I find that the first application dated 15th December 2025 for contempt is premature as it was filed well before the expiry of the 6 months. There were no orders of eviction issued in the judgement. It is not clear what orders were disobeyed by the Appellant/Respondent. I find the application is not merited and the same is dismissed with costs. Be that as it may, I find that the second application for stay pending appeal has been filed within the period given to the Defendants to comply with the decree. The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir Eldoret E&L 919 of 2012the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land. In **Machira T/A Machira & Co Advocates vs East African Standard (No 2) [2002] KLR 63** it was held that; *“****to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”*** I find that, where a party has been given a particular timeframe within which he should comply with a judgment, then he ought to apply to stay that judgment before that timeframe lapses. It is my considered view that an application for stay coming after the stated days for compliance with the judgment will constitute unreasonable delay, unless a good explanation is offered, giving reasons why the application has come after the period given for compliance. This is because there is a reason as to why the court considers a certain number of days to be reasonable for compliance with the judgment, and the continued non-compliance after the given duration, constitutes a violation of the judgment of the court. In the instance of this case, I find that the Applicants/Appellants are not guilty of laches as judgement was delivered on 28th October 2025 and the application is dated 16th December 2025. The Applicant submitted that he resides on the land has constructed permanent houses and I find that he would suffer substantial loss if stay is not granted. I have perused the memorandum of appeal and find that it does raise triable issues. I find the application is merited and I grant it as prayed. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**