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Kipsirgoi Investments Ltd v Local Authorities Pension Trust Registered Trustees & another (Petition E033 of 2021) [2026] KEELC 4095 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4095 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Petition E033 of 2021 OA Angote, J July 2, 2026 Between Kipsirgoi Investments Limited Petitioner and Local Authorities Pension Trust Registered Trustees Respondent and National Environmental Management Authority Interested Party Ruling 1.Before this court for determination is the Petitioner’s/Applicant’s notice of motion dated 26th February, 2026 brought pursuant to the provisions of Section 3, 12, 13 and 16 of the Environment and Land Court Act, Section 1A, 1B 3, 3A of Civil Procedure Act and Order 22 Rule 22 and 42 Rule 6 of the Civil Procedure (Amendment Rules) seeking the following reliefs:i.That pending the hearing and determination of the intended Appeal against the Judgment/Decree of this Court (Honourable Justice O. A. Angote) in Milimani ELCPET NO. E033 of 2021 delivered on 5th February, 2026, there be and is hereby issued a temporary injunction restraining the Respondent whether by itself, its agents, servants, employees, contractors or any other person acting under its instructions from carrying out any construction works, upgrading, paving, placing cabro or undertaking any other development or alteration works on the 10 meter wide access road on the Petitioner's Property known as LR Number 13065 (original No. 939/1 and 5830/9) situate in Ololua Ridge - Karen in Nairobi County which is the subject matter of the Appeal.ii.That there be an order stay of execution of the Judgment/Decree of this Court delivered on 5th February, 2026, in Milimani (Honourable Justice CA. Angote) in Milimani ELCPET NO. E033 OF 2021 and all consequential orders proceedings arising therefrom pending the hearing and determination of the Appeal.iii.That pending the hearing and final determination of the Appeal (Court of Appeal Civil Appeal No. 399 of 2024), there be a stay of the orders issued by the court vide its judgment dated 7th March 2024.iv.That the costs of this application do abide the outcome of the application. 2.The application is based on the grounds on the face of the motion and supported by the affidavit of Maureen Cheptoo Leting, a director and shareholder of the Petitioner/Applicant herein and an advocate of the High Court of Kenya. 3.She deponed that on 5th February, 2026, this court delivered judgment dismissing the Petition, which had challenged the Respondent’s threatened violation of the Petitioner’s right to a clean and healthy environment arising from the proposed upgrading of an access easement traversing the Petitioners’ property from an earth road to a cabro-paved road without first obtaining the requisite Environmental Impact Assessment (EIA) Licence and approvals from the County Government of Nairobi. 4.Aggrieved by the foregoing, she stated, the Petitioner has lodged and served a notice of appeal against the judgment and decree of this court. Consequently, it was argued, this court is empowered by Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules 2020 to grant the reliefs sought to preserve the subject matter of appeal pending hearing and determination of the said appeal. 5.According to Ms Leting, the urgency of the application is underscored by the fact that the Respondent has, without obtaining EIA License and City County approvals as directed by the impugned judgment at para 188-189, instructed and sent surveyors onto the easement area to map out the area in readiness to continue with easement upgrade works from earth road to cabro, and that it has threatened to return to the site with equipment to proceed with construction works on the subject access road. 6.She explained that unless the orders sought are granted, the Respondent will proceed with the impugned works and render the aforesaid appeal nugatory. In any event, she urged, the Respondent's actions are contrary to clause 188-189 of the judgment of this court which directed the Respondent to first obtain an EIA License from NEMA and County Government approval before upgrading the access road. 7.She further deponed that, to the best of her knowledge and belief, no Environmental Impact Assessment (EIA) Licence has been sought or obtained to date, notwithstanding the continued execution of the impugned works. It was her position that the ongoing works are being undertaken in contravention of the law, particularly Article 42 of the Constitution, as well as the judgment of this court, thereby posing a continuing threat to the Applicant’s right to a clean and healthy environment. 8.It was deposed that allowing construction to proceed without the requisite NEMA license will not only prejudice the petitioner, but will also undermine the decision of the authority of this court and the related regulatory frameworks for environmental protection. 9.It is the Petitioner’s case that it has arguable grounds of appeal with reasonable prospects of success, including grounds relating to the court's contradictory findings on the requirement for a NEMA license and the failure to address the Petitioner's property rights adequately as brought out in the draft memorandum of appeal. 10.She further deponed that the balance of convenience tilts in favour of granting the orders sought, and that the Respondent will suffer no prejudice if the status quo is preserved pending the determination of the appeal. According to the deponent, the existing access road can continue to serve the Respondent’s residents during that period. She also averred that there is an alternative access route through Forest Lane Road, which the Respondent’s residents may utilize to access the dominant tenement, thereby negating any claim of inconvenience arising from the grant of the orders sought. 11.In response to the motion, the Respondent, through Isaac K. Mitei, the Company Secretary of CPF Financial Services, the corporate administrator of the Respondent herein, swore a replying affidavit on 10th March, 2026. 12.He stated that on 5th February, 2026, this court delivered a judgment dismissing the petition against the Respondent in its entirety with costs to the Respondent. In so dismissing, the court noted that there exists an easement over the Petitioner's land and that the dispute crystallized around the extent of the easement, the measurement and the upgrading of the easement. 13.It was deposed that at paragraph 151 of the judgment, the court found that the easement had been validly created and was appurtenant to the dominant tenement; that consequently, the benefits of the easement passed together with the dominant land to the Petitioner and its successors in title; that the effect of that finding was that the Respondent retained, in principle, the right to use the easement, subject always to the lawful scope of the easement and the manner in which that right is exercised and that the court held that where an easement exists, the dominant owner is entitled to enter the servient land to carry out such works as are reasonably necessary to render the right of way effective including maintenance. 14.He explained that the court further found that the proposed improvement of the easement through the paving of a short access road measuring approximately 30 metres by 9 metres constituted a low-risk project for which a summary project report and an Environmental Impact Assessment (EIA) licence were required. Consequently, the court directed that the Respondent obtain the requisite EIA licence before undertaking the works. 15.Mr. Mitei stated that, as advised by counsel, the power of the court to grant a stay of execution pending appeal is governed by Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, which sets out the conditions that an applicant must satisfy before such relief can issue; that the Respondent has not engaged or instructed any surveyors to undertake the activities alleged by the Petitioner and that the assertions in this regard are purely speculative and amount to a calculated attempt to mislead the court and improperly invoke its sympathy in support of the application for interim orders. 16.He contended that the photographs annexed to the Petitioner’s supporting affidavit were taken in 2021, as evidenced by the accompanying certificates of accuracy, and therefore do not depict any recent activities related to the impugned works. 17.He argued that the photographs were deliberately produced to create the impression that the Respondent was upgrading the easement without the requisite approvals from NEMA and the Nairobi City County Government, yet no evidence of such ongoing works had been placed before the court and that the Petitioner has throughout its pleadings used the words “attempted to upgrade” with no iota of evidence in support of the said assertion. 18.According to him, the fact that the Petitioner has lodged an appeal or is dissatisfied with the decision does not constitute substantial loss; that such loss must be demonstrated which it has not been herein; that this court had previously ordered the cabros to be removed in compliance with its orders and return the road to earth road and that this in effect means that if the judgment is implemented it can be easily reversible should the appeal succeed. 19.He urged that the grant of stay of execution will result in irreparable financial losses and significant prejudice to the Respondent, as the sale of the town houses was predicated on the road. Further, that the Respondent's sales have been adversely affected and some buyers even pulled out, and the Respondent had to refund them their monies. 20.In any event, he asserted, the judgement delivered by the trial court on 5th February,2026 is a negative order, and therefore does not give rise to any executable decree capable of being stayed and that the decision does not create any obligation that can be suspended or halted through an order of stay. 21.He further averred that Order 42 Rule 6(2)(b) of the Civil Procedure Rules requires an applicant seeking stay of execution to furnish security for the due performance of the decree. According to the deponent, the Petitioner has neither offered nor expressed any willingness to provide such security; that a blanket order of stay cannot issue in the absence of reasonable security and that the Petitioner’s failure to address this mandatory requirement is fatal to the application. Consequently, he maintained that the Applicant has failed to satisfy the threshold for the grant of stay and urged the court to dismiss the application with costs to the Respondent. 22.The Petitioner, through its counsel, filed written submissions dated 7th April 2026. Counsel submitted that this court's jurisdiction to grant stay of execution pending appeal and/0r injunction pending appeal is anchored not only in Order 42 Rule 6 of the Civil Procedure Rules but also in its inherent powers under the Civil Procedure Act, and the Environment and Land Court Act. 23.Cited in support was Evans Kaleka Sogomi vs District Land Registrar & 6 others [2017] eKLR, Skycrapers Africaway Company Limited & another vs First Community Bank Limited & another (Civil Case 107 of 2016) [2025] КЕНС 7264 (KLR) (Commercial and Tax) (26 May 2025) (Ruling)and Mjomba vs Mwanjala & 4 others [2023] KEELC 16806 (KLR). 24.Counsel conceded that courts generally do not grant a stay of negative orders. However, it was submitted that the impugned judgment did not merely dismiss the petition but also made positive determinations permitting the Respondent, upon obtaining the requisite EIA licence, to upgrade the easement road and lay cabro paving along the nine-metre easement corridor. Further, the judgment awarded costs, which are executable upon taxation. In the absence of a stay, the Respondent would be entitled to tax its costs and commence execution proceedings. 25.On whether the threshold for grant of a stay of execution and injunction pending appeal had been met, counsel relied on Madhupaper International Ltd vs Kerr (1985) KLR 840, Skyscrapers Africaway Company Limited & Another vs First Community Bank Limited & Another [2025] KEHC 7264 (KLR), Patricia Njeri & 3 Others vs National Museum of Kenya [2004] eKLR, which set out that an injunction pending appeal is a discretionary remedy that will not be granted where the appeal is frivolous or where greater hardship would result from its grant. 26.In seeking the same, counsel stated, an applicant is obligated to establish that the intended appeal is arguable and not frivolous, that refusal of the orders sought would render the appeal nugatory, and that the court ought to be guided by the established principles governing interlocutory injunctions. 27.Counsel asserted that the intended appeal is arguable and not frivolous. Relying on Mrao Ltd vs First American Bank of Kenya & 2 Others [2003] eKLR, NIC Bank Limited & 2 Others vs Mombasa Water Products Limited [2021] eKLR and Kamau Muchuha vs Ripples Ltd Civil Appeal No. 186 of 1992, it was submitted that the appeal raises serious questions regarding the lawfulness of upgrading the easement road without prior approval from NEMA and the Nairobi City County Government and whether retrospective statutory approvals can lawfully issue. 28.Counsel submitted that the Petitioner will suffer irreparable injury if the orders sought are declined, as the Respondent has already taken steps towards implementing the impugned works. Cited in support was Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR. Counsel further invoked Article 70(3) of the Constitution, Section 3(4) of EMCA and Kenya Hotel Properties Ltd vs Willesden Properties Ltd [2006] eKLR to submit that environmental harm need not be quantified in monetary terms and that substantial loss should be assessed pragmatically. 29.On whether the appeal will be rendered nugatory, counsel submitted that unless restrained, the Respondent intends to proceed with laying cabro paving over approximately 380 metres of the Petitioner’s land, causing irreversible physical and environmental changes. 30.Reliance was placed on Isaac Gotoho & 2 Others vs Director General, NEMA & Another [2017] eKLR and National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & Another [2006] eKLR for the proposition that a stay should issue where there is a real danger that the substratum of the appeal will be destroyed before the appeal is heard. Counsel argued that once the works are completed, the appeal challenging those very works would become merely academic. 31.Regarding security, counsel submitted that the requirement under Order 42 Rule 6(2)(b) is inapplicable in the circumstances because the judgment principally dismissed the petition and the only monetary aspect concerned costs, which had yet to be taxed. Nevertheless, counsel stated that the Petitioner is willing to provide reasonable security should the court deem it necessary. 32.On the balance of convenience, counsel submitted that the Petitioner stands to suffer far greater prejudice if the orders sought were declined than the Respondent would suffer if they were granted. Reliance was placed on Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR for the proposition that where refusal of an injunction is likely to occasion irreversible harm, while its grant would merely delay the opposing party’s activities, the balance of convenience tilts in favour of preserving the status quo. Counsel further submitted that the application had been filed without undue delay and, in support of that contention, relied on Cecilia Wanja Waweru vs Jackson Wainaina Muiruri & Another [2014] eKLR. 33.The Respondent filed written submissions dated 28th April, 2026. Counsel submitted that guided by Order 42 Rule 6 of the Civil Procedure Rules, this court lacks jurisdiction to grant an injunction pending appeal against its own judgment and is functus officio, having conclusively determined the petition on its merits. 34.Reliance was placed on Bartholomew Mwanyungu & 3 Others vs Florence Dean Karimi [2019] eKLR, M’Ituruchiu vs M’Guatu & Another [2024] KEELC 3648 (KLR), Hunkar Trading Company Limited & Another vs Family Bank Limited [2024] KEHC 2951 (KLR), Clesoi Holdings Limited vs Prime Bank Limited [2016] KEHC 3696 (KLR) among others. 35.Counsel submitted that the impugned judgment dismissed the petition with costs and therefore amounted to a negative order incapable of execution or stay. Any consideration of the conditions governing the grant of stay is unnecessary and purely academic. In support of that position, reliance was placed on Western College of Arts and Applied Sciences vs Oranga & 3 Others [1976] eKLR, as well as the decisions in Jeremiah Mnjogu vs District Land Registrar Meru Central & 5 Others [2021] KECA 1050 (KLR), Kanwal Sarjit Singh Dhiman vs Keshavji Jivraj Shah [2008] KECA 346 (KLR), and Sonalux Limited & Another vs Barclays Bank of Kenya Limited & 2 Others [2008] KECA 132 (KLR). 36.Finally, counsel submitted that the application is vexatious and an abuse of the court process and should be dismissed with costs, relying on Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2014] eKLR. Also cited was Cecilia Karuru Ngayu vs Barclays Bank of Kenya & Another [2016] eKLR on the principle that costs follow the event. Analysis and Determination 37.Having considered the motion, affidavits and submissions, the sole issue that arises for determination is whether the Petitioner/Applicant has satisfactorily demonstrated the conditions warranting the grant of stay of execution pending Appeal and/or injunction pending appeal. 38.The law with respect to stay of execution pending appeal is found in Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 which provides as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall 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; 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.” 39.In Vishram Ravji Halai vs Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal, discussing the High Court’s [read ELC’s] jurisdiction under this Order stated:“The Superior Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.” 40.What arises from the foregoing is that the grant of orders of stay of execution are subject to the court’s discretion, the court in this respect being guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. The question of how the court should exercise this discretion was extensively discussed by the Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 as follows:“ 1.The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion. 3.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings. 4.The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. 5.The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 41.Further to the above, this court is now enjoined to give effect to the overriding objectives in the exercise of its powers as expressed in Section 3 of the Environment and Land Court Act and Section 1A of the Civil Procedure Act, to wit, the just, expeditious, proportionate and affordable resolution of disputes. 42.The court is so guided. 43.By way of brief background, the Petitioner instituted this petition seeking inter-alia, declarations that the Respondent's intended upgrading of an existing earth-road easement into a cabro-paved access road across its land, without first obtaining the requisite environmental approvals, licences and development permissions, violated its constitutional right to a clean and healthy environment. 44.It further sought injunctive orders restraining the Respondent from undertaking or continuing with any road construction, paving, excavation, or related works on the easement corridor pending compliance with the applicable environmental and planning laws, together with consequential reliefs, costs, and any other orders the court deemed just and appropriate. 45.Briefly, it was the Petitioner's case that it is the registered proprietor of LR No. 13065 over which a private easement has historically been granted to serve two residential houses on the Respondent's adjoining property. The Petitioner contended that the Respondent unlawfully sought to intensify the use of the easement by upgrading it into a cabro-paved access road to serve a large residential development without its consent and without complying with the constitutional and statutory requirements relating to environmental protection, public participation, environmental impact assessment, and fair administrative action. 46.It maintained that the impugned works, which involved the felling of indigenous trees and excavation activities, violated its rights under Articles 40, 42 and 47 of the Constitution and posed a threat to the environment and the peaceful enjoyment of its property. 47.On its part, the Respondent asserted that the easement was lawfully created during the subdivision of the original parcel in the 1970s and that it existed as a registered right of way measuring 12 metres in width for the benefit of its property. The Respondent maintained that it had obtained all necessary approvals, including environmental and county government approvals, and that it had undertaken the impugned works strictly within the easement corridor. 48.It denied any trespass or environmental violation and contended that the petition was an attempt to frustrate its lawful enjoyment of the easement and its residential development. The Respondent further maintained that the easement runs with the land, is binding upon successors in title, and is not restricted to serving a specific number of dwelling units. 49.The Interested Party maintained that it lawfully issued the Environmental Impact Assessment licence in respect of the Respondent's development on LR No. 6939/2 after satisfying itself that the statutory requirements had been met. 50.Vide its judgment delivered on 5th February, 2026, the court found that the Respondent’s use of the easement amounted to a permissible intensification of the residential access for which it had originally been created and did not constitute a change in its essential character. The court further held that the Respondent was entitled, subject to obtaining the requisite licence from NEMA, to upgrade the access road, the proposed works having been classified as a low-risk project. The court also found that the Respondent had not trespassed upon the Petitioner’s land and that the Petitioner was therefore not entitled to the compensation sought. Consequently, the Petition was dismissed with costs. 51.The Petitioner seeks an order of stay of execution pending the hearing and determination of its intended appeal. However, before the court can consider whether the requirements under Order 42 Rule 6 of the Civil Procedure Rules have been satisfied, it must first determine whether the judgment sought to be stayed is capable of execution. 52.This is because an order of stay can only issue where there exists a positive and enforceable decree or order capable of execution. Where the impugned decision is merely dismissive in nature and imposes no obligation upon any party, there may be nothing capable of being stayed save, in appropriate cases, the order as to costs. 53.Speaking to this, the Court of Appeal in Nthiga vs Keeru & 2 others (Civil Application 19 of 2020) [2024] KECA 320 (KLR) (22 March 2024) (Ruling) stated:“This Court has pronounced itself articulately on stay of negative orders. In the appeal before the ELC, the parties were not ordered to do anything or to refrain from doing anything. What was therefore issued is in the nature of a negative order incapable of execution and as such there is nothing to stay. See Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR where the learned Judges stated thus:“what is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.”Similarly, in Raymond M. Omboga vs. Austine Pyan Maranga Kisii HCCA No 15 of 2010, Makhandia, and J. (as he then was) stated thus:“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise...” 54.In the present case, although the Petitioner contends that the judgment contained positive orders capable of execution, the court is unable to agree. A careful reading of the judgment shows that the court merely determined the issues placed before it and ultimately dismissed the petition with costs. 55.The findings that the Respondent could, upon obtaining the requisite approvals and licences, upgrade the easement were part of the court's reasoning and determination of the parties' rights and did not amount to a positive or enforceable order directing any party to act or refrain from acting. 56.It is also apparent that the stay sought herein is not directed at the issue of costs, which remains the only aspect of the judgment capable of execution upon taxation and certification. Consequently, the judgment remains, in substance and effect, a negative order incapable of execution. The plea for stay therefore cannot lie. 57.Turning to the prayer for injunctive relief pending appeal, the court’s power is anchored on Order 42 Rule 6(6) of the Civil Procedure Rules. A plain reading of that provision shows that such power is only exercisable where the court is sitting in its appellate capacity and not as a trial court. 58.In the present case, this court is seized of the matter as a court of first instance and not on appeal. The jurisdiction contemplated under Order 42 Rule 6(6) is therefore unavailable to the Petitioner. This position was persuasively affirmed in Hunkar Trading Company Limited & Another vs Family Bank Limited (Commercial Case E841 of 2021) [2024] KEHC 2951 (KLR), where the court held that:“...it is evident that this court’s jurisdiction to grant an order for temporary injunction pending appeal can only be invoked in instances where the Court is exercising its appellate jurisdiction, which is not the case herein.” 59.Ultimately, having found that the judgment sought to be stayed is a negative order incapable of execution, and having further found that this court lacks jurisdiction under Order 42 Rule 6(6) of the Civil Procedure Rules to grant an injunction pending appeal while sitting as a court of first instance, it follows that the application therefore fails in its entirety. 60.For those reasons, the application dated 26th February, 2026 is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 2ND DAY OF JULY, 2026.O. A. ANGOTEJUDGEIn the presence of;Ms Akello for RespondentMr. Litoro for Petitioner/ApplicantCourt Assistant: Tracy