https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4581

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC MISC. NO. 103 OF 2008** **MANSUKHALAL JESANG MARU--DECREE HOLDER/RESPONDENT** **VERSUS** **FRANK WAFULA------------------JUDGMENT DEBTOR/APPLICANT** **RULING** 1. What is before me for determination is the judgment debtor’s Notice of Motion dated **7/5/2026**, in which the said judgment debtor is seeking the following orders in the main: 2. **…spent.** 3. **THAT pending the hearing and determination of this application, there be a temporary stay of execution of the Ruling and Orders delivered on 29/4/2026, including any eviction, demolition, or interference with the applicant’s possession of the suit land.** 4. **THAT pending the hearing and determination of the intended appeal, there be a stay of execution of the said Ruling and consequential Orders issued on 29/4/2026.** 5. **THAT in the alternative, this Honourable Court be pleased to grant an order that the status quo obtaining on the suit land be maintained pending interpartes hearing.** 6. **THAT this Honourable Court be pleased to make any such further or other orders as may be just.** 7. **THAT the costs of this application be provided for.** 8. The application is based on grounds on the face of it, chief of which is that the applicant is dissatisfied with the ruling and orders of **29/4/2026** and has lodged a notice of appeal with the leave of court, and that the respondent has commenced execution; and that there is imminent risk of eviction which could occasion the applicant substantial and irreparable loss, including loss of his home and possession. 9. The applicant further states that he has an arguable intended appeal with high chances of success and that he also undertakes to seek review of the decision in **Civil Appeal No. E094 of 2023.** 10. The application is further supported by the applicant’s sworn affidavit of even date, setting out the facts giving rise to the same. At paragraphs **6** and **7** of the said affidavit, the applicant deposes that he has an arguable intended appeal with high chances of success and that at the same time he intends to initiate the process of reviewing the judgment in **Civil Appeal No E094 of 2023** at Eldoret. 11. The applicant further deposes that unless a stay of execution is granted, the intended appeal will be rendered nugatory, as eviction may proceed before the appeal is heard. He further stated that the application has been brought without delay and that he is ready to abide by any conditions as to security for costs as this court may direct. 12. The application is opposed. The decree holder, who is the respondent in this application, filed a replying affidavit dated **7/5/2026** in which he avers that the application is a non-starter and that the arguments raised therein are arguments that have been dealt with in this court and the Court of Appeal; and that the said courts did not agree with the applicant. 13. The respondent further contended that the instant application is *res judicata* and intended to interfere with the findings of this court and the Court of Appeal. The respondent further stated that no leave of court had been sought by the applicant to file this application, yet the court had directed the applicant never to file applications without such leave. 14. The respondent further averred that it is clear in the judgment of this court that **LR. No. 211/1124** is the property of the plaintiff/respondent, which was converted into **LR No. Kitale Municipality Block 12/26**. 15. When this matter came up for mention on **14/5/2026** before Hon. Justice C.K. Nzili, he gave directions in the form of an order marking the application dated **4/5/2026** as withdrawn and further directing that the application dated **7/5/2025** be canvassed by way of written submissions. The learned judge further gave a mention date of **23/6/2026** to fix a ruling date. However, on the said date, the court was away on official duties, so the matter was only mentioned on **1/7/2026**, during which time the court allowed both parties to make representations on the application on the basis of the sworn affidavits on record, whose contents the parties reiterated. Further, though the respondent had filed submissions, I did not find the submissions of the applicant on record. However, given that the applicant is not represented by counsel, this court was not keen on the parties’ submissions for equality of arms 16. This court’s ruling, therefore, turns on the application, the applicable law, and the rival affidavits on record. Equally, the court did not find the need to allow the applicant to go back to file a further affidavit as the date the matter came up for mention had been filed by a replying affidavit and submissions well in advance, having not filed such further affidavit during the intervening period. 17. I have carefully considered the application as well as the applicable law. I have equally considered the rival affidavits on record. 18. The application is brought under **Order 42 Rule 6**, as well as **Order 51 Rule 1** of the Civil Procedure Rules, **Sections 1A, 1B,** and **3A** of the Civil Procedure Act, alongside **Articles 27. 40. 48, 50,** and **159** of the Constitution. 19. When a party moves the court under **Order 42 Rule 6** of the Civil Procedure Rules, he invokes the court’s jurisdiction in the exercise of discretion to either grant or refuse to grant a stay of execution order. The Court of Appeal in the case of ***Butt -vs- Rent Restrictions Tribunal [1982] KLR 417,*** buttressed the discretionary nature of a stay order in the following words: ***“The powers 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.”*** 1. I must add on my part that, such discretion must not be exercised willy-nilly. It must be weighed against the parameters set out under **Order 42 Rule 6(2)** of the Civil Procedure Rules, **2010**, that is to say: ***(i) Substantial loss may result to the applicant unless the order is made.*** ***(ii) The application was made without unreasonable delay.*** ***(iii) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him as been given by the applicant.*** 1. It is instructive to note that though the applicant has argued vide his application that he has an arguable appeal with high chances of success or that the intended appeal would be rendered nugatory if stay orders are not granted, those are not conditions contemplated under **Order 42 Rule 6** of the Civil Procedure Rules. 2. Applying the facts of the matter before me against the conditions set out by law, I note that the impugned ruling by my learned brother Justice C.K. Nzili was made on **29/4/2026**. The applicant moved this court on **7/5/2026**. It is therefore not contested that the application was made without unreasonable delay. 3. It is also instructive to note that the applicant has undertaken to comply with any conditions as to security for costs as the court may impose. 4. What this court finds rather problematic is the issue of whether substantial loss may result to the applicant unless the order is made. It is instructive to note that the applicant is not seeking stay orders pending appeal of the judgment of this court. A perusal of the court record reveals that the applicant already moved the Court of Appeal challenging the judgment of this court delivered on **16/10/2023** by F. Nyagaka J, which appeal was dismissed with costs by the learned Justices of the Court of Appeal on **11/10/2024**. Equally, an application for leave to appeal to the Supreme Court against the judgment and order of the Court of Appeal was dismissed by a different Bench of the Court of Appeal on **25/4/2025**. 5. It can, therefore, be argued that the applicant has had sufficient time to prepare and mitigate on any substantial loss that may result, even as he seeks to prosecute his perceived rights from one superior court to another. 6. I do not, therefore, think that the applicant has demonstrated how the application meets this particular condition to invite the court to exercise its discretion in his favour. I respectfully decline to grant an order for stay of execution of the ruling of this court dated **29/4/2026** and the consequential orders therefrom. I equally decline the invitation to issue an order for status quo on the suit property pending the intended appeal of the court's ruling. 7. The applicant, however, has this court’s blessings and leave to seek a stay of execution of the orders issued on **29/4/2026** at the Court of Appeal as he seeks to prosecute the appeal. 8. It is so ordered. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **10th** day of **July 2026.** **In the presence of:** Court Assistant - Matui Mr. Kiarie holding brief for Nyamu for the decree holder Judgment debtor in person  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**