https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3002

Matagaro & another v Ondieki (Suing as the Legal Administrator of the Estate of Ondieki Mayiete - Deceased) (Environment and Land Appeal E020 of 2025) [2026] KEELC 3002 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3002 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Appeal E020 of 2025 DO Ohungo, J May 20, 2026 Between Esther Ombogo Matagaro 1st Appellant Vicent Onguso Oeba 2nd Appellant and Elimelita Kwamboka Ondieki (Suing as the Legal Administrator of the Estate of Ondieki Mayiete - Deceased) Respondent (Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Nyamira (B Ondego, Chief Magistrate) delivered on 20th November 2025 in Nyamira MCELC No. E019 of 2020) Ruling 1.Litigation leading to this appeal was commenced in the Subordinate Court by the Respondent when she filed Plaint dated 22nd December 2020, against the Appellants herein and the Land Registrar Nyamira County as the First to Thirds Defendants, respectively. 2.Upon hearing the matter, the Subordinate Court (B Ondego, Chief Magistrate) delivered judgment on 20th November 2025 in the following terms:The Plaintiff moved this Court vide Plaint dated 22nd December, 2020 seeking the following prayers against the Defendants jointly and severally:i.An order for the cancellation of title numbers: North Mugirango/Bosianga/4231, North Mugirango/Bosianga/4232, North Mugirango/Bosianga/5571, North Mugirango/Bosianga/5572 and North Mugirango/Bosianga/5573 and the Reversion of the plots to the original number being North Mugirango/Bosianga/1118 ii.An eviction order against the 1st and 2nd Defendants from the suit parcels.iii.Costs and interest of the suit.iv.Such further and/or other relief as the Honourable Court may deem fit and expedient so to grant.….be as it may the Court hereby orders that all the titles arising out of North Mugirango/Bosianga/1118 indicated in prayer No. 1 be cancelled and all to revert to 1118.Secondly, the 1st and 2nd Defendants be evicted from the suit properties.Thirdly, the D.C.I.O to investigate and take action of the 3 Defendants.Fourthly, the Court awards costs and interest to the Plaintiff. 3.Dissatisfied with the outcome, the Appellants filed this appeal on 5th December 2025 through Memorandum of Appeal dated 4th December 2025. Subsequently, they filed Notice of Motion dated 10th December 2025, which is the subject of this ruling. 4.The following orders are sought in the application:1.That this application be certified as urgent and service be dispensed with the purposes of being heard ex-parte in the first instance.2.That there be stay of execution of proceedings in Nyamira ELC NO. E019 of 2020 pending appeal.3.That cost of this application be borne by the Applicant. 5.The Application is premised on the grounds listed on its face and is supported by an affidavit sworn by the First Appellant. She deposed that admission for hearing and final disposal of the appeal was likely to take a long period and that execution of the orders of the Subordinate Court was on “top gear.” That if execution proceeded and the appeal eventually succeeded, the appeal would be rendered nugatory. She added that it was in the interest of justice that proceedings in Nyamira MCELC No. E019 of 2020 be stayed and that the Respondent would suffer no prejudice. 6.The Respondent opposed the application through a replying affidavit which she swore on 10th February 2026. She deposed that there was literally nothing in the Appellants’ supporting affidavit to confirm that the appeal had overwhelming chances of success and that no specific reasons had been given to warrant stay of execution. 7.The application was canvassed through written submissions. The Appellants/Applicants filed submissions dated 26th February 2026 while the Respondent filed submissions dated 23rd February 2026. 8.It was submitted on behalf of the Appellants/Applicants on that their appeal raises weighty arguable issues and that an arguable appeal is not one that must succeed but one that raises a bona fide issue deserving full interrogation by the appellate Court. Reliance was placed on Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR. 9.On the question of whether they would suffer substantial loss, the Appellants/Applicants relied on the cases of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KLR 410 and Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR and submitted that eviction would destroy the substratum of the Appeal. That restoration of possession after successful appeal is never automatic and may be practically impossible, particularly if third party interests arise. 10.The Appellants/Applicants further submitted that they had filed the application without any delay and added that they were ready to comply with any conditions that the Court may impose. They urged the Court to grant stay of execution of the judgment and decree of the Subordinate Court pending hearing and determination of the appeal. 11.On her part, the Respondent’s submitted that there were no proceedings to be stayed and the Appellants/Applicants had totally failed to meet the threshold for stay of proceedings of the Subordinate Court in the matter in which judgment had already been delivered. She relied on the case of Ndura & another v Kenya Power and Lighting Company Limited [2025] KEELC 91 (KLR) in that regard. 12.The Respondent also submitted that the Appellants/Applicants had not demonstrated an arguable appeal and further contended that stay of proceedings was likely to derail the proceedings and occasion an injustice to her. She relied on Mose v Omenta [2025] KEHC 3778 (KLR) and submitted that the interest of justice militates against granting stay of proceedings. She therefore urged the Court to dismiss the application with costs. 13.I have considered the application, the affidavits and the submissions. The application could have benefitted from better drafting. Its prayer 2 seeks “stay of execution of proceedings in Nyamira ELC NO. E019 of 2020 pending appeal.” Inclusion of both “of execution” and “of proceedings “ in the same prayer only leads to confusion. 14.Nevertheless, from the totality of the application, the affidavits and the submissions, I take it that the Appellants/Applicants are seeking stay of execution of the judgment and decree of the Subordinate Court pending hearing and determination of this appeal. That is the only logical position since the proceedings in the Subordinate Court ended upon delivery of the judgment. There are thus no proceedings in that Court that can be stayed. I also note that this is an appeal against the judgment and decree of the Subordinate Court. 15.This Court’s jurisdiction to grant stay pending appeal is guided by Order 42 rule 6 (2) of the Civil Procedure Rules which provides as follows:6.(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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. 16.The gist of the foregoing provisions is that an Applicant seeking stay pending appeal must demonstrate that substantial loss will result to her if stay is not granted, and that the application has been made without unreasonable delay. Such an Applicant is further required to give such security as the Court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR. 17.As Platt Ag JA (as he then was) stated in Kenya Shell Limited v Benjamin Karuga Kibiru & another (supra), substantial loss is the corner stone of the jurisdiction to grant stay of execution pending appeal. It is virtually impossible for such an application to succeed if an applicant fails to demonstrate that she will suffer substantial loss if stay is not granted. 18.The judgment and decree of the Subordinate Court ordered cancellation of five titles and eviction of the Appellants/Applicants from the said parcels. Further, the Court ordered the D.C.I.O to investigate and act against the Appellants. I have no doubt in my mind that if all those aspects were enforced before the hearing and determination of this appeal, and if the appeal is ultimately concluded in favour of the Appellants, they would suffer substantial loss. 19.Regarding the aspect of unreasonable delay, I note that the judgment of the Subordinate Court was delivered on 20th November 2025 and that the present application was filed on 10th December 2025. There was no unreasonable delay. 20.In view of the foregoing discourse, I find merit in Notice of Motion dated 10th December 2025. I will limit the life of the stay order, with a view to encouraging an early hearing and determination of this appeal. 21.In the end, I make the following orders:a.Pending the hearing and determination of this appeal, I grant stay of execution of the judgment and decree in Nyamira MCELC No. E019 of 2020.b.The stay order shall, unless extended by the Court, remain in force for a period of only twelve months from the date of this ruling or until this appeal is determined, whichever occurs first. Consequently, parties are reminded to expeditiously prosecute this appeal.c.In line with prayer 3 of the application, the Appellants shall bear costs of the application. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 20TH DAY OF MAY 2026.D. O. OHUNGOJUDGEDelivered in the presence of:No appearance for the AppellantsNo appearance for the RespondentCourt Assistant: Edinah N