https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2953

Khamis & 2 others (Suing on Their Own Behalf and as Trustees of Jamia Mosque Community Based Organization) v Mbale Muslim Mosque Committee (Suing Through Its Officials Juma Ramadhan & Zubeir Shogobe) & another (Environment and Land Appeal E022 of 2025) [2026] KEELC 2953 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2953 (KLR) Republic of Kenya In the Environment and Land Court at Vihiga Environment and Land Appeal E022 of 2025 E Asati, J May 14, 2026 Between Shaban Lahuya Khamis 1st Appellant Khalid Khamisi 2nd Appellant Ramadhan Avina Rajab 3rd Appellant Suing on Their Own Behalf and as Trustees of Jamia Mosque Community Based Organization and Mbale Muslim Mosque Committee (Suing Through Its Officials Juma Ramadhan & Zubeir Shogobe) Respondent and Joseph Saliku Iningu Proposed Interested Party Ruling 1.This ruling is in respect of 2 applications. 2.The Notice of Motion application dated 19th November, 2025, expressed to be brought pursuant to the provisions of Order 42 Rule 6 Civil Procedure Rules, 2010, seeks orders that;i.Pending hearing and determination of the appeal herein, the court be pleased to stay the execution of the judgment and/or decree vide Vihiga MCLE MISC Cause No. E010 of 2023 delivered on the 11th day of November, 2025.ii.That the status quo obtaining at the date of filing this application be preserved pending the hearing and determination of the appeal, namely that;a.The Appellant shall continue in occupation, possession, and management of Mbale Town parcel numbers 57, 58, 59, and 50 and;b.that the tenant occupying the commercial premise erected on Mbale Town parcel numbers 57, 58, 59, and 60 shall continue depositing rent into Account No.20XXXXXX36 ABSA Bank Kakamega Branch, held in the joint names of the respective Counsel pursuant to the trial court’s orders of 19th October, 2023.c.That costs be provided for. 3.The application was supported by the averment in the Supporting Affidavit of Shaban Lahuya Khamis and the annexures thereto. 4.The application was opposed vide the averments in the Replying Affidavit sworn by Juma Ramadhan on 26th November, 2025. 5.The application was heard by way of written submissions.1.The substantive relief sought is an order of stay of execution of the judgment of the trial court pending the hearing and determination of the appeal herein. The grounds for the grant of an order of stay of execution are provided for in Order 42 Rule 6(2) of the Civil Procedure Rules 2010, which provides that:“No order for stay of execution may be made under sub-rule (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 andb.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.” 6.The grounds upon which the present application is brought are that the trial court vide the judgment delivered on 11th November, 2025, granted various orders in favour of the Respondent in relation to parcel No.56 and directed that the orders be enforced against the Appellants. That being dissatisfied with the judgment, the appellants have appealed herein. That the judgment as framed is incapable of enforcement, as the court issued orders related to parcel No.56, a property that belongs to neither of the parties. 7That enforcement of the orders in the judgment would cause the Appellants substantial and irreparable prejudice, as the Appellants have never collected rent from the said property, and the amounts claimed are beyond their means. 8.That while the Appellants ordinarily offer security for the due performance of a decree under Order 42 Rule 6 of the Civil Procedure Rules, 2010, they contend that this is an exceptional case for which insisting on security would be unjust and unnecessary.That the Respondent will suffer no prejudice should the orders sought be granted.No submissions were filed on behalf of the Applicant. 9.The case of the Respondent, as contained in the Replying Affidavit, is that the Respondent is the registered proprietor of commercial plot No. 56 and that the trial court correctly found that the Respondent was entitled to collect rent from tenants of land parcel No.56.The Respondent contended that no explanation had been given for the delay in filing the application. 10.It was submitted on behalf of the Respondent that the Applicants have not demonstrated substantial loss. That instead, it is the Respondent who will suffer immediate and tangible prejudice if a stay is granted: denial of rental income from its property, continued uncertainty, and erosion of the principle that litigation must come to an end. 11.I have considered the application, the reply thereto, and the submissions filed. The Applicants have filed an appeal challenging the judgment of the trial court. The plot No.56 and the income therefrom are the subject matter of the appeal. Enforcement or execution of the judgment means, inter alia, that the Applicants be compelled to account for all transactions, payments made, and funds received as rental income from the premises comprised in the commercial plot No.56 Mbale Market and indemnify the Respondent for losses and damages suffered. 12.One of the substantive issues to be determined in the appeal is whether or not the trial court erred in making the orders. To compel the Applicant to comply before the appeal is heard will not only render the appeal nugatory but also subject the Applicants to substantial loss. 13.I find that the application has merit and may be granted on condition that the applicants deposit security as provided for in Order 42 Rule 6.2.The second application is the Notice of Motion dated 2nd December, 2025, expressed to be brought pursuant to the provisions of Order 1 Rule 10(2), 25 and Section 1A, 1B and 3A of the Civil Procedure Act. The application is brought by one Josephat Saliku Iningu. 14.The application seeks orders that;1.The Applicant be joined to the proceedings as an Interested Party.2.Upon joinder, the Applicant be granted leave to participate fully in the appeal, including the right to file affidavits, submissions, and any applications necessary for the protection of his property interest in parcel No. 56, Mbale Town, parcel No.563.That the costs of the application be provided for. 16.The application is supported by the contents of the Supporting Affidavit sworn by the Applicant on 2nd December, 2025, and the annexures thereto.The application was opposed by the Respondent vide the Replying Affidavit of Juma Ramadhan, sworn on 9th December, 2025.The substantive relief sought is joinder of the Applicant as an Interested Party in the appeal. 17.The law governing joinder of parties to proceedings is found in Order 1 Rule (10) (2), which provides that;the court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined whether as Plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all question involved in the suit, be added. 18.In the present case, the Applicant describes himself as the lawful son, heir in possession of the registered owner, and the effective de facto landlord and manager of all commercial activities undertaken in the said property. 19.The Applicant claims to be the one who exclusively collects accounts for and manages all rental income generated from commercial units on plot No.56.The Applicant averred that the judgment of the trial court affected his rights over the suit land, yet he was not a party in the suit. 20.The Respondent opposed the application on the grounds that it is the Respondent who is the registered allottee of plot No.56, that the Applicant lacks locus standi to assert the proprietary or managerial rights, rendering the joinder untenable.That permitting joinder would cause scope creep, delay disposal, and prejudice the Respondent. 21.I have considered the application and the response thereto. The Applicant, who states that the suit land is the property of his late father by the name of John Iningu, deceased, has not exhibited any document to show that he has locus standi to act on behalf of the estate of his father. The exhibits annexed to the application and particularly the letter of allotment, are in the name of the deceased. The law requires that persons who bring action on behalf of deceased persons or in respect of property registered in the name of deceased persons be persons duly appointed in accordance with the provisions of the Law of Succession Act as personal representatives of the deceased person. See sections 2, 45, and 82 of the Law of Succession Act. 22.Secondly, perusal of the documents annexed to the application shows that the letter of allotment held by the Applicant’s father, deceased, was in respect of plot No.55, Mbale. Although there is a letter by the Town Clerk asking the Commissioner of Land to correct the plot number to 56 instead of 55, there is no evidence that the said change ever occurred. There is no other allotment letter in favour of the deceased exhibited save for the one for No.55. Plot No.55 is not a subject of the proceedings herein. 23.Although this court has jurisdiction to add the Applicant to the proceedings herein, the Applicant has not demonstrated the grounds for joinder. The application lacks merit.For the foregoing reasons;i.The application dated 19th November, 2025, is allowed. An order of stay of execution of the judgment of the trial court is hereby granted pending hearing and determination of the appeal on condition that the Applicants deposit in court a sum of Kshs. 150,000/- Kenya shillings one hundred fifty thousand only) within 45 days, hereof as security, in default of which the stay of execution order granted herein shall lapse.ii.The application dated 2nd December, 2025, is hereby dismissed.iii.Each party to bear its own costs of the applications.Orders accordingly. RULING, DATED AND SIGNED AT VIHIGA AND READ VIRTUALLY THIS 14TH DAY OF MAY, 2026, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Ajevi - Court Assistant.Kundu for the AppellantsNo appearance for the Respondent.No appearance for the Proposed Interested Party