Kipkurgat & 4 others v Kemboi & 2 others (Civil Appeal E222 of 2025) [2026] KEHC 12533 (KLR) (31 July 2026) (Ruling)

Kipkurgat & 4 others v Kemboi & 2 others (Civil Appeal E222 of 2025) [2026] KEHC 12533 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12533 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E222 of 2025 JM Chigiti, J July 31, 2026 Between Ruth Jerono Kipkurgat 1st Appellant Meshack Sewerei 2nd Appellant Solomon K Chepchieng 3rd Appellant Sikuku Chemoiwo 4th Appellant Ezekiel Kemboi 5th Appellant and Shadrack Kimitei Kemboi 1st Respondent Catherine Chepchirchir Kimutal 2nd Respondent Map Atlas Company Limited 3rd Respondent Ruling 1.Before this Court for determination is the Appellants' Notice of Motion dated 19th January 2026 brought principally under Order 42 Rule 6 of the Civil Procedure Rules seeking an order of stay of execution of the warrants of possession issued in Eldoret Chief Magistrate's Civil Case No. 339 of 2017 pending the hearing and determination of this appeal.There is also the 1st Respondent's Preliminary Objection dated 4th March 2026, by which the Respondents challenge the competence of both the appeal and the application for stay. 2.Given the Preliminary Objection raises issues that go to the Court's jurisdiction to entertain the appeal, it is appropriate that it be determined before consideration of the merits of the Notice of Motion. 3.The appeal arises from the ruling of the subordinate court dismissing the Appellants' application seeking to be joined in the proceedings as interested parties. The Appellants contend that they have identifiable proprietary and possessory interests in the suit property and that the refusal to join them denied them an opportunity to be heard before orders culminating in their eviction were made. They have therefore appealed against that decision and simultaneously seek preservation of the status quo pending the determination of the appeal. 4.The Respondents contend that the appeal is incompetent for want of leave, is barred by Section 67(2) of the Civil Procedure Act, and that the Appellants have failed to satisfy the requirements for the grant of stay pending appeal. The 3rd Respondent further maintains that it lawfully acquired the suit property through a judicial sale conducted pursuant to a valid decree and that execution ought not to be interrupted. 5.Upon carefully considering the Application, the Preliminary Objection, the affidavits filed by the parties, the rival submissions and the applicable law, the following issues arise for determination: -a.Whether the Preliminary Objection dated 4th March 2026 is merited;b.Whether the Appellants have satisfied the requirements for the grant of stay of execution pending appeal; andc.What orders ought to issue. Whether the Preliminary Objection is merited 6.The Preliminary Objection is premised on three principal grounds. First, that the appeal is incompetent for want of leave. Secondly, that the appeal is barred by Section 67(2) of the Civil Procedure Act. Thirdly, that the application for stay, being dependent upon an incompetent appeal, is equally unsustainable. Those objections challenge the Court's jurisdiction to entertain the appeal and therefore require determination at the outset. 7.The law governing preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court stated that a preliminary objection consists of a pure point of law which, if successfully argued, may dispose of the suit without the Court having to ascertain disputed facts or exercise judicial discretion. The objections raised herein concern the competence of the appeal and therefore properly qualify for determination as preliminary objections. 8.The Respondents first contend that the appeal was lodged without leave of the Court. Whether leave is required depends upon the nature of the order appealed from. Although the impugned ruling was rendered in proceedings relating to execution, the decision challenged in this appeal neither confirmed the judicial sale nor determined the legality of the execution process. Rather, it dismissed the Appellants' application seeking joinder to the proceedings. It is that refusal to join the Appellants which forms the substratum and bedrock of this appeal. 9.In determining whether leave was necessary, the Court must look at the substance of the decision appealed against rather than the procedural context in which it arose. The mere fact that the application for joinder was filed during execution proceedings does not convert the impugned ruling into an appeal against execution. The appeal is directed against the refusal to admit the Appellants into the proceedings, and I am therefore unable to agree that it is incompetent for want of leave. 10.The Respondents further rely on Section 67(2) of the Civil Procedure Act on the basis that the proceedings culminated in a consent order from which no appeal lies. That argument is equally unpersuasive. The statutory prohibition against appeals from consent judgments applies to parties who freely entered into the consent. The Appellants were not parties to the impugned consent. Indeed, the gravamen of their complaint is that they were denied participation in the proceedings altogether. Their appeal is therefore directed, not against the consent itself, but against the refusal of the trial court to join them before that consent was adopted. 11.In the premises, I find that none of the grounds advanced in the Preliminary Objection is sustainable. The Preliminary Objection dated 4th March 2026 is accordingly dismissed. The Court must therefore proceed to determine whether the Appellants have established a proper basis for the grant of stay pending appeal. Whether the Appellants have satisfied the threshold for the grant of stay pending appeal 12.The jurisdiction of this Court to grant an order of stay of execution pending appeal is donated by Order 42 Rule 6 of the Civil Procedure Rules. Under that provision, an applicant must demonstrate that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay, and that such security as the Court may order for the due performance of the decree has been furnished. Those requirements, however, are not to be applied mechanically. They are intended to guide the Court in the exercise of its judicial discretion, which must be exercised judiciously and in a manner that strikes a fair balance between the right of an unsuccessful litigant to pursue an appeal and the right of a successful litigant to enjoy the fruits of a lawful judgment. As was stated by the Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417, the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory where there is no overwhelming hindrance to the exercise of that right. 13.The Appellants contend that they are presently in occupation of portions of the suit property and that the warrants of possession issued by the subordinate court expose them to imminent eviction. They maintain that unless execution is stayed, they will be removed from the property before their complaint regarding the refusal of the trial court to join them to the proceedings is determined. They therefore urge the Court to preserve the existing state of affairs so that the appeal, if successful, is not rendered merely academic. 14.The Respondents oppose the application on the basis that execution has substantially been concluded and that the 3rd Respondent acquired the suit property through a judicial sale conducted pursuant to a valid decree. They submit that the Appellants have not demonstrated substantial loss and argue that the Court should not interfere with the proprietary rights of a purchaser who lawfully acquired the property through the execution process. 15.I have anxiously considered those competing positions. At this interlocutory stage, the Court is not called upon to determine the validity of the judicial sale or the respective proprietary interests asserted by the parties. Those questions lie at the heart of the appeal itself and must await full determination. The present inquiry is confined to whether the subject matter of the appeal ought to be preserved pending its hearing and determination. 16.The Court of Appeal in Kenya Shell Ltd v Kibiru [1986] KLR 410 emphasized that substantial loss is the cornerstone upon which the jurisdiction to grant stay rests. In the present case, the decree sought to be executed is one for possession of land. If the Appellants are evicted before their appeal is heard and they subsequently succeed, restoration of the previous state of affairs may prove difficult, if not impossible. Eviction from land often gives rise to consequences that cannot readily be compensated by an award of damages. In those circumstances, I am satisfied that the Appellants have demonstrated that they stand to suffer substantial loss unless the subject matter of the appeal is preserved. 17.With regard to delay, the impugned ruling was delivered on 26th August 2025, while the present application was filed on 19th January 2026. Although the interval between those dates is not insignificant, delay must be considered in the context of the circumstances surrounding each case. Having considered the chronology of events disclosed by the record, I am not persuaded that the delay was so inordinate or inexcusable as to disentitle the Appellants to the equitable relief sought. 18.The Respondents further urged the Court to order the Appellants to deposit the purchase price paid by the 3rd Respondent at the judicial sale as security for the due performance of the decree. I respectfully decline that invitation. The decree under execution is not a money decree but one concerning possession of immovable property. To require the deposit of the entire purchase price at this interlocutory stage would impose a disproportionate burden upon the Appellants and may effectively impede their constitutional right of appeal. The justice of this case will, in my view, be sufficiently served by conditions directed at preserving the suit property while ensuring that none of the parties gains an unfair advantage pending the determination of the appeal. 19.I am equally alive to the fact that the 3rd Respondent asserts rights acquired through a judicial sale and is therefore entitled to the protection of the law. Equally, the Appellants are entitled to have their grievance regarding their exclusion from the proceedings determined through the appellate process. The Court's duty is to balance those competing rights in a manner that preserves the integrity of the appeal without unnecessarily prejudicing either party. In my considered view, the justice of the case lies, not in permitting execution to proceed to its logical conclusion before the appeal is heard, nor in granting the Appellants unrestricted relief, but in preserving the substratum of the appeal through carefully tailored conditions pending its determination. Disposition; 20.Having dismissed the Preliminary Objection and carefully considered the competing arguments advanced in support of and in opposition to the application, I am satisfied that this is an appropriate case for the exercise of the Court's discretion in favour of preserving the subject matter of the appeal. 21.In arriving at that conclusion, I have borne in mind that the Appellants seek to challenge the refusal of the trial court to join them to proceedings culminating in orders affecting possession of the suit property. Equally, I have considered the Respondents' entitlement, and particularly that of the 3rd Respondent as the purchaser at a judicial sale, to enjoy the fruits of a lawfully obtained judgment. The Court is therefore required to strike a careful balance between those competing rights without, at this interlocutory stage, pronouncing itself on the merits of the appeal. 22.The conditions imposed by the Court are not intended to determine the parties' proprietary rights nor to confer an advantage upon either side. Their sole purpose is to preserve the substratum of the appeal so that the issues raised therein may ultimately be determined on their merits. To permit execution to proceed to completion before the appeal is heard would carry the real risk of rendering the appeal nugatory, while granting an unrestricted stay would unjustifiably prejudice the Respondents. The justice of the case therefore lies in maintaining the existing state of affairs pending the determination of the appeal. 23.The Court is equally mindful that an order of stay pending appeal is an equitable and discretionary remedy granted to preserve the subject matter of litigation and not to shield an indolent litigant from the consequences of a lawful judgment. The stay granted herein is therefore conditional upon the Appellants prosecuting this appeal with diligence and expedition. 24.The Court will not permit its discretionary jurisdiction to be employed as an instrument for delaying or frustrating the Respondents' enjoyment of the fruits of a lawful judgment. Should it become apparent that the Appellants have failed to prosecute the appeal with reasonable diligence, the Respondents shall be at liberty to move the Court for such further orders as may be appropriate, including the variation or discharge of the orders of stay granted herein. Orders; 25.Accordingly, and for the foregoing reasons, the Court makes the following orders:-a.The 1st Respondent's Preliminary Objection dated 4th March 2026 is hereby dismissed.b.The Appellants' Notice of Motion dated 19th January 2026 is hereby allowed.c.There shall be a stay of execution of the warrants of possession issued in Eldoret Chief Magistrate's Civil Case No. 339 of 2017 pending the hearing and determination of this appeal.d.Pending the hearing and determination of the appeal, the status quo obtaining on the ground as at the date of this ruling shall be maintained.e.For the avoidance of doubt;i.The Appellants shall remain only in the portions of the suit property, if any, which they presently occupy and shall not extend their occupation beyond those portions.ii.The Appellants shall not erect further structures, undertake additional developments, introduce new occupants, commit waste, or in any other manner alter the character or condition of the suit property pending the determination of the appeal.iii.None of the parties shall sell, transfer, charge, lease, subdivide, alienate or otherwise deal with Land Parcel No. Kaptagat/Kaptagat Block 3 (Misoi)/22, or any portion thereof, in a manner that may prejudice or defeat the hearing and determination of the appeal.f.The stay granted herein is conditional upon the Appellants prosecuting this appeal with due diligence, failing which the Respondents shall be at liberty to apply for appropriate orders, including the discharge or variation of the stay.g.The costs of the Notice of Motion and the Preliminary Objection shall abide the outcome of the appeal.It is so ordered. DELIVERED, DATED AND SIGNED ON THIS 31ST DAY OF JULY, 2026 AT ELDORET………………………………J. M. CHIGITI (SC)JUDGE