https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3849

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. E002 OF 2024 (O.S)** **EZEKIEL SIMIYU MARUTI------------------PLAINTIFF/RESPONDENT** **VERSUS** **JAMIN SAID MARUTI-----------------------DEFENDANT/APPLICANT** **RULING** 1. What is before the court is an application dated **8/4/2026,** seeking a stay of execution of the ruling delivered on **18/3/2026**. The reasons are contained on the face of the application and in a supporting affidavit of Nyakundi George Stephen, counsel for the applicant, sworn on the even date. 2. It is deposed that the applicant, being aggrieved by the decree and the ruling of the court, has filed a notice of appeal dated **23/2/2026**, and applied for certified copies of the proceedings as per annexure marked **EX-JSM-1(a)** and **(b).** 3. The applicant deposes that unless the application is allowed, there will be execution of the decree and transfer of the land, rendering the appeal nugatory. 4. The deponent states that the respondent will suffer no prejudice, unlike the applicant, who will suffer irreparable loss and damage. 5. The applicant deposes through his lawyer that he is ready and willing to abide by any directions of the court on security; otherwise, he has filed the application without inordinate delay. 6. The application is opposed through a replying affidavit sworn by Ezekiel Simiyu Maruti on **22/4/2026** as a gross abuse of the court process. 7. An application seeking a stay of execution has to meet the conditions set out in **Order 42 Rule 6** of the Civil Procedure Rules. The ruling of the court, leading to a notice of appeal dated **23/3/2026,** dismissed the applicant’s application dated **18/11/2025** for review, variation, and setting aside the judgment dated **24/9/2025,** to adduce more evidence. The court has not been informed whether there is a pending appeal against the judgment or its resultant decree. 8. It is a general principle of law that a stay of execution cannot be ordered against negative orders. By dismissing the applicant’s application mentioned above, the court did not grant any positive order in favour of the respondent capable of execution. 9. An order of stay of execution ordinarily is an interim order that seeks to delay the performance of a positive obligation that is set out in a decree as a result of a judgment or a ruling. That is what is presupposed to be a positive order. 10. In ***Republic -vs- The Commissioner for Investigation and Enforcement; Ex parte Wananchi Group of (K) Ltd [2014] eKLR***, the court had dismissed a judicial review application. The court said that a stay of execution was not available in those circumstances. The deponent deposes that without a stay, the intended appeal will be rendered nugatory. 11. In the ***National Assembly & Another -vs- Okiya Omtatah Okoiti & Others Civil Appl. No. 6577 of 2023***, the court cited ***Kangethe Kinyanjui -vs- Tony Keter & Others [2013] eKLR***, that nugatory must be given its full meaning. The court declined to review, set aside, or vary its earlier judgment. How the intended appeal against that refusal will be rendered futile, invalid, or useless has not been demonstrated through tangible and cogent evidence. The dismissal gave no advantage to the respondent. After all, the judgment remains unchallenged on appeal. 12. As to security, the same has to be offered as a sign of good faith as held in ***Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR.*** It is not enough to state that a party is willing to abide by any conditions the court may impose as to security. It is for the applicant to meet the conditions under **Order 42** of the Civil Procedure Rules in a distinct, separate, and sequential manner. 13. The ruling was delivered on **18/3/2026**, while this application was filed on **8/4/2026**. The law firm that has filed the same has not complied with **Order 9 Rule 9** of the Civil Procedure Rules. 14. It is not enough to file a consent without seeking its endorsement by the court after it has been served upon all the parties to the matter. The law has not set out a maximum or minimum delay. It all depends on the circumstances of each suit. 15. The court is being asked to stay the execution of the decree issued on **24/9/2025** in **April 2026**. It is alleged that there is a likelihood of a change of title to the land. No recent official search certificate has been availed. Evidence of any development or improvement on the applicant’s land is missing. 16. The deponent to the application is unable to substantiate all three conditions under **Order 42 Rule 6** of the Civil Procedure Rules. 17. The application is therefore dismissed with costs for being both incompetent and lacking merit. 18. File marked closed. 19. Orders accordingly. **Ruling dated, signed** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis No appearance for the parties  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**