https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5021

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCC NO. E004 OF 2023** **JANE KEPKEMBOI…………………..….…….1ST PLAINTIFF/RESPONDENT** **BETHWEL K. LIMO………………………….2ND PLAINTIFF/RESPONDENT** **VERSUS** **JULIUS KIPKEMBOI (Suing as the Administrator of the Estate of KIBET ARAP NGISIREI-DECEASED)…………….…… DEFENDANT/APPLICANT** **RULING** 1. The applicant through Rotich Langat and Partners Advocates generated an application by way of a Notice of Motion dated 13th October 2025 seeking the orders infra; 2. That this Honourable court be pleased to issue orders of stay of execution of the Certificate of costs and orders issued on 29th September 2025 further to the ruling of 12th September 2025 by this Honourable Court pending the hearing and determination of this **ELDORET COACA NO. E062 OF 2025 JULIUS KIPKEMBOI (Suing as the Administrator of the Estate of KIBET ARAP GISIREI (Deceased) versus JANE JEPKEMBOI and BETHWEL KIBICHY).** 3. That costs of this application be provided for. 4. The application is rooted in the applicant’s supporting affidavit and on the grounds, inter alia; 5. The Applicant has preferred an Appeal against the judgement of this Honourable Court being **ELDORET COACA NO. E062 OF 2025 JULIUS KIPKEMBOI (Suing as the Administrator of the Estate of KIBET ARAP GISIREI (Deceased) versus JANE JEPKEMBOI and BETHWEL KIBICHY).** 6. The Respondents have now obtained certificate of costs issued on 29th September 2025 further to the ruling of 12th September 2025. 7. The Respondents through their advocates letter dated 9th October 2025 have now given the applicant seven days from the date of service of the said letter to pay the said sum in default execution to issue. 8. The Applicant therefore prays that the said impending execution of the said Certificate of costs be stayed pending hearing and determination of the Appeal being **ELDORET COACA NO. E062 OF 2025 JULIUS KIPKEMBOI (Suing as the Administrator of the Estate of KIBET ARAP GISIREI (Deceased) versus JANE JEPKEMBOI and BETHWEL KIBICHY).** 9. The respondents through Cheruiyot Kirui and Company Advocates, opposed the application by their replying affidavit of seventeen paragraphs sworn on 22nd October 2025 by the 1st respondent with the consent and authority of the 2nd respondent. They stated that this court is functus officio upon delivery of the judgment on 5th October 2024 thus, has no jurisdiction to entertain the application. That costs awarded in the suit were drawn and taxed as legally provided for. That the applicant has not proved any substantial loss and that the pending appeal has any chances of success. 10. Also, the respondents stated that the applicant did not obtain stay orders as envisaged under Order 42 Rule 6 of the Civil Procedure Rules 2010. That the applicant is using the pending appeal to deny the payment of costs and he is guilty of laches. That the matter has been overtaken by events and rendered moot. That the application is misplaced, lacks merit, frivolous and a gross abuse of the court process hence, it be dismissed with costs. 11. By the submissions dated 30th March 2026, learned counsel for the respondents stated that court has jurisdiction in respect of the application further to Order 22 Rule 25 of the Civil Procedure Rules 2010 on stay of execution. That there is no unreasonable delay in the application as it was mounted upon the applicant’s receipt of a letter relating to execution of decree. That the applicant stands to suffer immense and substantial loss should the decree and the certificate of costs be executed. Counsel relied on Order 42 Rule 6 (2) of the Civil Procedure Rules 2010 and the case of **James Wangalwa & another vs Agnes Naliaka Cheseto (2012) KEHC 1094 (KLR).** 12. In the submissions dated 17th July 2026, learned counsel for the respondents stated that the application has not met the threshold under Order 42 Rule 6 (2) of the Civil Procedure Rules 2010 and that the replying affidavit is not rebutted herein. Counsel relied on **Benjamin Karuga Kabiru & another {1986} KECA 94 KLR** as regards evidence of substantial loss and **Butt vs Rent Restriction Tribunal (1979) eKLR** on the discretion of the court to grant or refuse stay sought thus, urged the court to dismiss the application with costs to the respondents. 13. After consideration of the entire application, the replying affidavit and the rival submissions, the duty of this court is to determine whether the applicant has satisfied the requirements for grant of the orders sought in the application. 14. It is common ground that **ELDORET COACA NO. E062 OF 2025 JULIUS KIPKEMBOI (Suing as the Administrator of the Estate of KIBET ARAP GISIREI (Deceased) versus JANE JEPKEMBOI and BETHWEL KIBICHY) is in existence.** The same is pending andarose from a determination in this suit. 15. Plainly, the respondents are anxious to have execute the decree and certificate of costs executed herein. On the other hand, the appeal from this matter is pending in the Court of appeal at Eldoret. On that account, can both matters run simultaneously? 16. In the case of **Judicial Commission of Inquiry into Goldenberg Affair & 3 others vs Kilach (2023) KLR 249 at 365 & 266, it was held;** *’……It would not be right for the two matters to be heard simultaneously by the High Court and the Commission……..’* 1. It is important to note that this court has the mandate to grant interim preservation orders pursuant to section 13 (7) of the Environment and Land Court Act 2015 (2011). The mandate includes the preservation, in the interim, of a subject matter of appeal. 2. On stay of execution, in the case of Board of Governors Moi High School Kabarak & another vs Malcolm Bell (2013) KLR the Supreme Court of the Republic of Kenya noted its essence thus; *’****…..safeguarding the character and integrity of the subject matter of the appeal pending the resolution of the contested issues.’*** 1. It is well established that the court has the discretion to grant the orders sought in the application and the appellant/applicant has an undoubted right of appeal; see **Butt case (supra).** 2. In the premises, the considered opinion of this court is that execution before this court cannot proceed simultaneous with the pending appeal at the Court of Appeal on the same matter. It therefore, themy finding that the application dated 13th October 2025, is merited. 3. Thus, the said application is hereby allowed accordingly as stated in paragraph 1 (a) hereinabove with no orders as to costs. 4. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **29th day of July 2026**. **HON. G M A ONGONDO** **JUDGE** **In the presence of,** 1. Mr Moses Rotich learned counsel for the applicant/defendant 2. No appearance for the respondents/plaintiffs