https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4665

Kerario v Masero (Enviromental and Land Originating Summons 9 of 2017) [2026] KEELC 4665 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEELC 4665 (KLR) Republic of Kenya In the Environment and Land Court at Migori Enviromental and Land Originating Summons 9 of 2017 FO Nyagaka, J July 22, 2026 Between Roman Gaberi Kerario Plaintiff and Robert Nyaitati Masero Defendant Ruling (On the extension of time and review of previous orders) A. Background 1.This application relates to an already concluded suit. The suit was commenced by way of Originating Summons dated 2nd February, 2017. It proceeded and culminated in Judgment delivered on 20th February, 2024. In it, the court dismissed the suit in its entirety, with costs to the Defendant. Aggrieved, the Plaintiff lodged an appeal, being Kisumu Court of Appeal Civil Appeal No. E221 of 2024. He then moved this Court by an application dated 3rd December, 2024. In it he sought to stay the execution of the Judgment pending the hearing and determination of the Appeal. 2.By the Ruling delivered on 7th May, 2025, this Court granted a conditional stay of execution. The operative order in it was that the Plaintiff/Applicant deposits Kshs. 350,000/= in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days of the Ruling. The default Clause stated that "in default the stay of execution to lapse." It is common ground from the pleadings, though the parties variously and inconsistently refer to the date of that Ruling as dated "the 9th of April, 2025," "the 29th of April, 2025," and, correctly, "7th of May, 2025" in different documents on the record, the condition set was that a deposit be made within 30 days, in default of which the stay of execution would lapse automatically. 3.It is not in dispute that the sum of Kshs. 350,000/= was never deposited in the joint interest-earning account within the stipulated 30 days or at all as at the date of filing of the present application. The parties differ as to whose fault the default occurred. The Applicant blames the Defendant/Respondent's counsel for frustrating the process of opening the joint account. The Respondent denies that any such obligation was ever placed on him by the Court. 4.It is against this backdrop that the Applicant filed the instant Notice of Motion. He brought under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act. He supported by his own affidavit sworn on the same date as the application. He sought, in substance:a.…Spent;b.That this Court extends the stay orders issued (variously dated in the application as 29th April, 2025 and 9th April, 2025) pending the hearing and determination of the application inter-partes;c.That this Court reviews its order requiring deposit of the security in a joint interest-earning account, and substitutes it with an order that the Kshs. 350,000 be deposited in court within a specified period; andd.Costs. B. The Applicant's Case 5.The Applicant, through his supporting affidavit sworn on 29th September, 2025, averred that, the Court had granted him stay of execution on condition that he deposits Kshs. 350,000/= as security in a joint interest-earning account within 30 days. He annexed a copy of the Ruling and marked it RGK-1. The Court gave the Respondent's counsel the responsibility of initiating the process of opening the joint bank account since the Applicant's counsel was apprehensive that the Respondent's counsel would delay the process. Despite the steep conditions and the amount of money involved, the Applicant collected the security sum and was ready to comply. Despite several reminders, counsel for the Respondent failed to initiate the process, thereby interfering with compliance. He Annexed a copy of a letter, dated 13th June, 2025 and marked it as RGK-2. It was in the interest of justice that the orders sought be granted to safeguard the substratum of the suit and the pending appeal. Further, this Court has wide and unfettered discretion to grant the orders sought or such further orders as it deems fit. C. The Respondent's Case 6.The Respondent opposed the application through a Replying Affidavit his Advocate swore on 18th February, 2026. He did not file written submissions on behalf of the Respondent, and none appear on the record. From the depositions in the Replying Affidavit, the Respondent's case was that the application was an abuse of the process of the court. The Court gave a conditional stay of execution, under which the Applicant was to deposit Kshs. 350,000/= into a joint interest-earning account in the names of the advocates on record. There was attached to it a further order that the deposit was to be made within the next 30 days of the order, in default of which the stay was to lapse. That the order did not state that it was counsel for the Respondent who was to initiate the process of opening the account. Moreover, it was not counsel for the Respondent who had sought the stay of execution orders in the first place. 7.The thirty (30) days given lapsed on or about 30th May, 2025. Therefore, as at that date the stay of execution lapsed. The letter annexed to the Applicant's affidavit as "RGK-2" was dated 13th June, 2025 after the 30 days had already lapsed. In any event, it purports to refer to a non-existent order of the Court as to who was to initiate the account-opening process. That there was no order of the Court capable of being reviewed or varied as the stay of execution orders lapsed upon the expiry of 30 days from the date the conditional stay was granted. Submissions 6.The Applicant filed submissions dated 20th March, 2026 in support of the application, and in opposition to the application dated 16th September, 2024. In the submissions which, unlike the Notice of Motion and supporting affidavit, correctly identified the Ruling whose condition sought to be extended, as having been delivered on 7th May, 2025. The Applicant reiterated that it was not in dispute that conditional orders for stay of execution were issued vide the said Ruling. That counsel for the Respondent was tasked with commencing the process of opening the account. The Respondent has, to date, failed to commence that process. The Court was not functus officio and retains discretion to deal with applications properly before it. The prejudice likely to be occasioned by a refusal of the orders sought was that the pending appeal would be rendered nugatory. The Applicant prayed that the application be allowed with costs. D. Issue, Analysis and Determination 6.Having considered the application, the Supporting Affidavit, the applicant’s submissions, and the Replying Affidavit and the law, I am satisfied that only substantive issue to determine was whether there was merit in the prayer for extension of the terms of the conditional stay of execution. 7.The starting point is the understanding of the plain language of the Ruling of 7th May, 2025. The ruling was binding on the parties. The Applicant was to deposit Kshs. 350,000/= in a joint interest-earning account within thirty (30) days, "in default the stay of execution to lapse." This was not a discretionary or open-ended condition requiring a further order of court to take effect upon non-compliance. Rather, it was a self-executing condition. Upon expiry of the 30 days, without the deposit having been made the stay lapsed automatically by the very terms of the order that created it, without need for any further pronouncement by this Court. 8.It is not disputed that the deposit was never made within the stipulated 30 days, and the period can be ascertained from calculation. The Ruling, as a fact, was delivered on 7th May, 2025. The Applicant does not allege in his affidavit that the deposit was made in time: that is by 7th June 2025. He alleges, instead, that the Respondent's counsel frustrated the process of opening the account. That may or may not be so. However, it does not alter the fact that the condition was not fulfilled, and by that the stay accordingly lapsed. 9.It follows that as at 29th September, 2025 when the present application was filed, there was no subsisting stay of execution. An application to "extend" an order presupposes that the order is still alive, and is merely at risk of expiring or requiring more time to run its course. It cannot be used to breathe life back into an order that has already ceased to exist. Similarly, a prayer to "review" the mode of security presupposes an existing order capable of variation. Quite simply, there is nothing to review once the underlying order has lapsed. 10.This is not a mere technicality. It reflects a sound and settled principle of law that a court cannot found an order upon a legal nullity. As Lord Denning, M.R. observed in the celebrated Privy Council case of Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, if an act is void, it is a nullity, and one cannot build upon it:"You cannot put something on nothing and expect it to stay there." Such a construct, the Learned Master of the Rolls observed, will inevitably collapse. 11.The same logic applies by the same token to an order that has, by its own terms, lapsed. This Court cannot extend or review it, for there is nothing there to extend or review. Any order this Court makes purporting to "extend" or "revive" the lapsed stay would not be an extension of an existing order at but the creation of an entirely new one dressed up in the language of an extension. That then would be an order without the benefit of the scrutiny of a fresh application for stay of execution being made under Order 42 Rule 6 of the Civil Procedure Rules that would ordinarily require (including consideration of delay, substantial loss, and appropriate security). 12.This above conclusion is reinforced by the doctrine of functus officio, restated by the Court of Appeal in Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR). The Court held that once a court has rendered its decision on a matter properly before it, it becomes functus officio in respect of that decision and lacks jurisdiction to revisit, alter or add to it, save in narrowly defined circumstances such as correction of clerical errors or where the court itself reserved liberty to apply. 13.The Ruling of 7th May, 2025 did not reserve to either party liberty to apply for extension of the 30-day period. It simply provided, in unambiguous terms, that non-compliance within that period would result in automatic lapse. This Court, having already pronounced itself conclusively on the terms of the stay of execution and the consequence of default, is functus officio as regards those terms. It cannot reopen a matter it has already and finally disposed of by its own order. 14.I have considered the Applicant's explanation that the delay in depositing the security was occasioned by the Respondent's alleged failure to cooperate in opening the joint account. I do not make any finding on the merits of that allegation, for it is, with respect, beside the point. Whatever the reasons for non-compliance, whether attributable to the Applicant, the Respondent, or both, the consequence stipulated by the Court was automatic; the stay would lapse in default of the deposit being made within 30 days. The reasons for the default, however sympathetically they may be viewed, cannot resurrect an order that has already, by operation of its own terms, ceased to exist. Timelines are not given as a matter of course. They ought to be respected, and for good order. Once a party considers that they are about to run out of time to do that which is expected of them to do or directed, they ought to approach the right forum for extension before the period expires. That is the right order of things. 15.If the Applicant considered that the Respondent was frustrating compliance, his remedy lay in moving this Court promptly, within the 30-day window, for appropriate directions or an extension of that time, and not in approaching the Court, months after the event, to extend or review an order already spent. 16.I note, in passing, that the pleadings before me on this application, as on the related application dated 16th September, 2024, betray a want of keenness and diligence. The date of the very Ruling sought to be extended is inconsistently stated as 9th April, 2025, 29th April, 2025, and then correctly elsewhere within the Applicant's own documents as 7th May, 2025. While this inconsistency does not affect the ultimate outcome of this Ruling, it is a matter counsel on both sides would be well advised to attend to with greater diligence in future filings. Pleadings are key to any life of a matter before the court. They ought to be drawn with not only uncanny precision but keenness. It would save both judicial time and the parties’ risk of losing a matter by default or denial of an amendment of the pleadings for amendments are not a matter of course. 17.The upshot of the foregoing is that the Notice of Motion dated 29th September, 2025 is incompetent. This Court cannot grant an order extending or reviewing an order that no longer exists in law, whatever explanation is offered for the underlying non-compliance. Accordingly, application is hereby dismissed. 18.Since costs follow the event, they shall be paid to the Respondent. 19.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 22ND DAY OF JULY 2026.HON DR. IUR NYAGAKA,JUDGEIn the presence of,Abande for the ApplicantAchola for the Respondent