https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4664

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC LAND APPEAL NO. E003 OF 2023** **GEORGE OTIENO MBULO .................... 1ST APPELLANT/APPLICANT** **MICHAEL ODHIAMBO MBULO..............2ND APPELLANT/APPLICANT** **-VERSUS-** **BENEDICT OWUOR NYAMWAYA ............................**.....**RESPONDENT** **RULING** **I. Introduction and Background** 1. For determination before this Court is the Notice of Motion dated 24th November 2025. It was filed by the 1st and 2nd Appellants/Applicants. They brought it under Articles 50(1) and 165(3)(e) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; and Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010. 2. The application arose from this Court's Judgment delivered on 30th September 2025. By it the court dismissed the Applicants' appeal in its entirety with costs. It thereby upheld the trial court's ruling of 5th September 2023 which was delivered in **Migori CMCC No. 362 of 2014**. The underlying suit had proceeded for hearing and culminated in a decree dated 31st March 2016 by which the court ordered the Applicants to vacate **L.R. No. SUNA EAST/AREA "B" KWA/326** within three months. It also awarded the Plaintiff costs of the suit. 3. On 24th April 2026, the Court of Appeal sitting at Kisumu allowed the Applicants' application for leave to lodge their Notice of Appeal out of time. The instant application then followed. It seeks to preserve the status quo pending the determination of the intended appeal. The Respondent opposed it by way of a Replying Affidavit he swor on 1st December 2025. Both parties filed written submissions, which the Court has considered. 4. In the instant application, the Applicants sought the following specific orders: 5. …Spent 6. Stay of execution of the Judgment and decree of 30th September 2025 pending the hearing and determination of this application and the intended appeal; 7. Stay of execution of the same, pending the intended appeal; 8. In the alternative, that the Judgment and decree of 30th September 2025 be set aside or varied; 9. Costs of the application. **II. The Appellants'/Applicants' Case** 1. The Application was supported by the Affidavit of the 1st Applicant, George Otieno Mbulo. It was sworn on 24th November 2025. He deponed that he did so on his own behalf and that of the 2nd Applicant. The applicants contend, in summary, that they and their families alongside their grandparents, parents, children and other families have occupied the suit property since the early 1970s. Further, they have never been evicted therefrom. Also, that the property was originally registered in the name of their grandfather, Mzee Achar Amuomo, as at 1972. He bequeathed it to their father, Daniel Mbulo Achar, in 1979. Then the Respondent herein obtained title thereto fraudulently in 2008. He has never occupied the land. 2. It was their further contention that enforcement of the Judgment would render them and their dependants homeless, and without livelihood, the property being their home and principal means of subsistence. Further, there is an appeal intended to be filed at the Court of Appeal. Without the stay of execution sought, the appeal will be rendered nugatory. They then contended further that the balance of convenience favoured them given the sensitivity of the dispute and the number of dependants on the property. They added that the application was made in good faith. **III. The Respondent's Case** 1. The Respondent, Benedict Owuor Nyamwaya, opposed the application by Replying Affidavit sworn on 1st December 2025. He contended that he successfully sued the Applicants in **Migori CMCC No. 362 of 2014.** The suit was determined on merit on 2nd December 2015. The Applicants' subsequent application for review was dismissed on 5th September 2023. Further, their Appeal against the dismissal was itself dismissed with costs by this Court on 30th September 2025. This prompted the present Notice of Appeal to the Court at Kisumu. 2. He argued that the orders of this Court were negative ones (a dismissal), which was incapable of being stayed. Further, that this rendered the application defective. 3. He stated that should the Court nonetheless be inclined to grant the application, then the Applicants ought to deposit security of Kshs. 1,000,000/=. Finally, he added that he was prejudiced by the continuing litigation while the Applicants remain on land he has successfully litigated to recover. **Applicants' Submissions** 1. In support of their application, learned counsel filed submissions dated 22nd June 2026. They framed the issue as being whether execution of the 30th September 2025 Judgment should be stayed pending the appeal lodged as Court of Appeal **Civil Application No. E158 of 2025.** 2. Relying on Order 42 Rule 6(2) of the Civil Procedure Rules and the decisions of **Kiprono v Oyollo & another [2026] KEHC 2847 (KLR)** and **James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR**, counsel submitted that an applicant must show that execution will irreparably affect or negate the very core of his position as successful party on appeal. 3. They relied further on the case of **Mukuma v Abuoga [1988] KECA 107 (KLR)** as a parallel authority. It concerned a land dispute where occupants had built homes and expended capital and the court held that such that eviction would occasion substantial loss. They submitted that their permanent and temporary structures, and their cultivation of the land, would be left vulnerable to demolition or alteration, rendering the appeal nugatory. 4. Citing **Wakoyo & 87 others v County Government of Mombasa & another [2023] KEELC 17030 (KLR),** counsel urged the Court's duty to preserve the substratum of an arguable, non-frivolous appeal. 5. On security, counsel resisted the Respondent's demand for Kshs. 1,000,000/=, submitting that the Applicants are of modest means with numerous dependants and as per Article 48 as read with Article 260 of the Constitution, any security required must be reasonable and not impede access to justice. **Respondent's Submissions** 1. The Respondent filed submissions dated 16th April 2026. He framed three issues therein. These were whether stay should be granted; whether the Judgment should be set aside or varied; and whether the Applicants are entitled to the orders sought. 2. On stay, counsel relied on Order 42 Rule 6(2) of the Civil Procedure Rules and the case of [**JAMES WANGALWA & ANOTHER v AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/1094/eng%402012-10-24)for the proposition that the mere setting in motion, or even completion, of execution does not by itself amount to substantial loss. He submitted further that the Applicants had failed to particularise any loss they would suffer. 3. Learned counsel relied further on [**Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2002/1167/eng%402002-05-23)on the burden borne by an applicant to demonstrate substantial loss. They submitted that the application was frivolous, vexatious and an abuse of process. 4. On security, counsel emphasised that the furnishing security is mandatory. He relied on the decision of [**EQUITY BANK LIMITED v TAIGA ADAMS COMPANY LIMITED [2006] KEHC 860 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2006/860/eng%402006-11-08)and [**EDWARD KAMAU & ANOTHER V HANNAH MUKUI GICHUKI & ANOTHER [2015] KEHC 7571 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/7571/eng%402015-07-08)and prayed for a deposit of Kshs. 1,000,000/= as a condition of any stay. 5. On the alternative prayer, counsel relied on **Shah v Mbogo [1967 E.A. 116** for the principle that the Court's discretion is not meant to aid indolent litigants but to prevent injustice. He submitted further that no sufficient cause or procedural irregularity had been shown. The Respondent prayed that the application be dismissed with costs. **IV Analysis and Determination** 1. Having considered the Notice of Motion, the supporting and replying affidavits, the rival submissions, the authorities cited, and the relevant law, the following issues commend themselves for determination by this court: 2. Whether the Judgment of 30th September 2025 is capable of being stayed, under Order 42 Rule 6 of the Civil Procedure Rules; 3. Whether the alternative prayer for setting aside or variation of the Judgment is available to the Applicants; and 4. Who should bear the costs of the application. 5. This court sets to determine the issues in sequence because if the first issue is answered in the negative, it will be unnecessary to determine whether the Applicants have satisfied the conditions in Order 42 Rule 6(2) substantial loss, absence of unreasonable delay, and security since those conditions arise only once it is established that there is an order capable of being stayed in the first place. 6. **Whether the Judgment of 30th September 2025 is capable of being stayed, under Order 42 Rule 6 of the Civil Procedure Rules.** 7. This is the threshold question to start by answering. By the Judgment of 30th September 2025, this Court dismissed the Applicants' Appeal in its entirety. It, in so doing, upheld the trial court's Ruling of 5th September 2023 by which the trial Court dismissed the Applicants' application to set aside the decree of 31st March 2016. While the Judgment the application had sought to set aside had commanded the applicants to vacate, the subsequent order from which the applicants appealed did not direct any party to do or refrain from doing anything, or pay any sum, save for costs. It was, in substance, a mere dismissal of the application. It was a negative order. 8. The Court of Appeal settled the character and import of such an order in [**Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1976/15/eng%401976-03-10)**.** It held that where a court has merely dismissed a suit or application, with costs, there is nothing to execute beyond costs, since the court has not ordered any party to do or refrain from doing anything, or to pay any sum. Such an order is negative, and a negative order is incapable of execution, and consequently incapable of being stayed, save as to costs. 9. This principle governs the circumstances herein. What is sought to be stayed is not a fresh affirmative order made by this Court: rather it its dismissal, on appeal, of the Applicants' challenge to the trial court's decree. There being no order for possession, mesne profits, or other affirmative relief made in the Judgment of 30th September 2025, there is nothing arising from it on which execution can attach to except costs and nothing accordingly, that Order 42 Rule 6 of he Civil Procedure Rules, can operate to stay. 10. This reading is reinforced by the text of Order 42 Rule 6(1) itself, which provides that ***"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."*** The power to set aside that the Rule contemplates attaches to an *order of stay* of a positive order granting or conditioning a stay made by the court below. It is not a general mechanism by which an aggrieved party may resist or unwind a negative order such as a dismissal. Where the order under appeal is itself negative, following upon another negative order at first instance, Order 42 Rule 6 of Civil Procedure Rules 2010 has no positive order to bite on, and an application invoking it is misconceived. 11. By my view above, it should not be understood that I am of the opinion that a second appeal can never found an application for stay of execution of a subordinate court's decree. What I hold is narrower than that: the Applicants ask this Court to stay execution of this Court's own dismissal of their appeal. That dismissal, being a negative order, is not capable of being stayed. Their prayer is akin to them asking that, “indeed, judge you have dismissed our appeal but we beseech you, do not direct the dismissal to take effect.” That would mean that this court would be looking back three steps to give effect the applicant’s prayer which would be too much of a stretch of its discretion. Thus, prayers (b) and (c) of the Notice of Motion fail on this ground alone. 12. Given the above finding, it is unnecessary to determine whether the Applicants have demonstrated substantial loss, and whether the application was brought without unreasonable delay, or what security, if any, ought to be furnished. Those conditions under Order 42 Rule 6(2) presuppose an order capable of being stayed and since none exists here, the Court declines to make findings on submissions addressed to conditions that do not arise. **(b) The alternative prayer for setting aside or variation** 1. The alternative prayer of the applicants is that this Court sets aside and/or vary its own Judgment of 30th September 2025. There is no reason given by the applicants for the court to consider to set aside its judgment. In any event, what I understand the applicants to say is that they have filed a Notice of Appeal in regard to the judgment of this court. By that it means that the subject matter of this court: the finding in appeal that was dismissed is now a subject of the Court of Appeal. This Court would then be bereft or deprived of jurisdiction to set aside the judgment and decree it issued. This is because the Court of Appeal has taken over the jurisdiction over the subject. 2. The Court of Appeal case of **OTIENO, RAGOT & COMPANY ADVOCATES V NATIONAL BANK OF KENYA LIMITED [2020] eKLR** held, “*The appellant submitted that though no substantive appeal had been filed, a notice of appeal had been lodged… Even though the substantive appeal had not been filed, the respondent had filed a notice of appeal. At the time when the application for review was made, the notice of appeal was in place. In effect, it was pursuing the relief of review while keeping open its option to appeal against the same ruling.*” 1. Moreover, a grammatical reading of **Rule 2(2)** of the **Court of Appeal Rules** yields the idea that an appeal to include an intended appeal. It reads, *““****appeal****”, in relation to appeals to the Court, includes an intended appeal;…”* Intent does not exist in a vacuum, it is shown by a filing of a Notice. This was the holding by their Lordships in the above-cited case of ***Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR*** where they held: “*It is immaterial whether the substantive Appeal has been filed or not. Even though the substantive appeal had not been filed, the respondent had filed a notice of appeal…There can be no place for review once an intention to appeal has been intimated by filing of a notice of appeal.*” 1. This means that an intended Appeal to the Court of Appeal is filed when a party lodges a Notice of Appeal in the right Registry over a decision. A party will not be procedurally right in setting aside a ruling or order he has lodged an appeal from while the appeal is pending. He must withdraw the appeal first or conclude it before moving the court for the orders of setting aside. This is because, if it is taken for granted that the setting aside succeeds, what will become of the appeal? Additionally, granted that the setting aside is done and then the appeal succeeds, over what subject will the appeal be made? 2. Of an application to review and set aside an order of the same court when a Notice of Appeal has been filed, this Court, in **SHEILA KABOLE MABWA V JOSHUA ANGELEI & 4 OTHERS [2021] KEELC 877 (KLR)** held: ***“34. Illustratively, in the competitive world where it is survival for the fittest, nature has given vultures ‘jurisdiction’ (the self-conscious right) over eating meat from carcasses. Thus, for those who believe in the Holy Scriptures of the Bible, at one time the Great Teacher said, in Luke 17: 37, "For wherever the carcass is, there vultures will be gathered together". In this example, the subject matter over which a court has jurisdiction may be equated to a “carcass” and the “vultures”, litigants who desire to hew the “carcass”. Hence by comparison with this wise saying, once an appeal was preferred against the judgment of this Court, there is no “carcass” in it at this stage: it has moved to and is in the Court of Appeal. There the vultures should gather the relief of hewing the carcass. The call by the Applicant for a gathering in this Court at this stage is misplaced.”*** 1. Thus, in the instant case, the applicant prays that this court sets aside a judgment he has already appealed from. This prayer is equally misconceived, for a reason connected to the finding above. Order 42 Rule 6(1) empowers an appellate court to set aside an order of stay made by the court below, it does not empower a court to set aside or vary its own final judgment under the guise of a stay application. Having rendered final judgment on the appeal before it, this Court became functus officio and cannot sit in review over its own determination in this manner. The proper avenue for challenging the correctness of the Judgment lies at the Court of Appeal, which the Applicants have already and properly invoked. This prayer is declined. 2. Costs follow the event. The costs of this application shall be borne by the Applicants, payable to the Respondent. 3. It is so ordered. **Ruling Dated, Signed and Delivered Virtually Via The Teams Platform This 22nd Day of July 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of:** Ngure Advocate holding brief for Ogolla for the Applicants Owino Advocate holding brief for Abisai for the Respondent