https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5036

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 114 OF 2017** **(FORMERLY NAIROBI ELC NO. 503 OF 2010)** **JOHN GUCHU NJOROGE ………...……..…………………………… PLAINTIFF** **VERSUS** **MBOI KAMITI FARMERS COMPANY LTD ………….…… 1ST DEFENDANT** **PAULINA WANJIKU MUNGAI ……..…..……PROPOSED 2ND DEFENDANT** **PETER MUKUNA NJAAGA** **……...…1ST PROPOSED INTERESTED PARTY** **IRENE WAMBUI** **…………..…….……2ND PROPOSED INTERESTED PARTY** **ANDREW LOMOSI** **BUDEMBESHE****…****………...…………...3RD PROPOSED INTERESTED PARTY** **ORIENTAL CONSTRUCTION** **COMPANY LTD** **……………….………4TH PROPOSED INTERESTED PARTY** **AND** **JOSEPH MUHIA NJOROGE …………….............…...…..…….. 1ST OBJECTOR** **MOSES GUCHU KARIRI ………………….…...........…………… 2ND OBJECTOR** **VINCENT MBURU KIARIE …………………………..........……. 3RD OBJECTOR** **FRANCIS WAIGOI MWANGI ………………………...........……..4TH OBJECTOR** **JOHN KAMANDE MUCHOKI ………………..............………….5TH OBJECTOR** **LUCY MUMBUA MULILI ………………………..…........………. 6TH OBJECTOR** **ROSE WANJIRU KIMANI** **……………………........….…………. 7TH OBJECTOR** **JOHN NDONGA MAINA …………………….............…………… 8TH OBJECTOR** **JOSEPH WANJOHI THIONGO………………...…….......………9TH OBJECTOR** **CATHERINE WANJIRU …………………...………....….………10TH OBJECTOR** **STELLA SYOMBUA MBUNE …………...………....……………11TH OBJECTOR** **VIDELIS THOGORI GITAU …………………...………...………12TH OBJECTOR** **SUSAN MICHELE KIAMA …………………….....………………13TH OBJECTOR** **SAMIA PROPERTIES LIMITED ……………………………….14TH OBJECTOR** **DAVID MITHAMO KABURI ……………...……………………..15TH OBJECTOR** **RULING** 1. Following the dismissal of the application filed by the Proposed Defendants Objectors and Interested parties seeking *inter alia* to set aside the judgment herein delivered on 22nd March 2019, the Applicants filed an application dated 10th November, 2025 seeking the following orders: 1. *Spent* 2. *Spent* 3. *That there be a stay of execution of the judgment delivered on 22nd March 2019 and the ruling delivered on 30th October 2025 pending the hearing and determination of the appeal.* 4. *That the costs of this application be provided for.* 2. The application is premised on the grounds set out on its face which essentially point to the fact that the Applicants have filed an Appeal against the ruling of this Honourable court delivered on 30th October 2025, and the same will be rendered nugatory if a stay of execution is not granted. The said grounds are elaborated in the supporting affidavit sworn by Peter Mukuna Njaaga on 10th November 2025. 3. In the said affidavit he depones that the Applicants’ counsel sought a stay orally and the court granted a 14 day stay before the Applicants filed the instant application. There was therefore no delay in filing the application. 4. He further argues that the Applicants have been in occupation of the suit premises for many years as the same forms their matrimonial home where they have constructed permanent dwellings and if evicted, they would be rendered homeless thereby suffering irreparable loss. 5. The application was vehemently opposed by the Plaintiff/ Respondent through his Replying Affidavit sworn on 8th December 2025. He avers that this court has no jurisdiction to determine whether the appeal is arguable and that the Applicants ought to apply for stay in the Court of Appeal. 6. He adds that in its ruling delivered on 30th October 2025, the court explained that one of the reasons it could not set aside the judgment was because partial execution of the decree had already taken place and that some of the parcels of land had been transferred to 3rd parties whose vested rights would be adversely affected. He is therefore of the view that the application has been overtaken by events. He relies on the case of **Jane Kemunto Mayaka v Municipal Council of Nakuru HCCC No. 124 of 2005** for the proposition that injunctions are issued to prevent the occurrence of an event that has not occurred or that is threatened to occur which would injure the applicant and are not issued where such an event has taken place. 7. It is his contention that the Applicant had already made an oral application on 30th October 2025 which was granted and therefore this matter is res judicata and that the court is *functus officio.* 8. He further argues that the Applicants have not met the conditions in Order 41(sic) Rule 6 of the Civil Procedure Rules, 2010. Additionally, that the right to appeal ought to be balanced with the Decree Holder’s right to enjoy the fruits of his judgment. 9. In addition to the Replying Affidavit, the Plaintiff/Respondent filed a Preliminary Objection dated 8th December 2025 4 salient points: Firstly, that a similar application being an oral application was made on 30th October 2025 and the court granted the Applicant a 14 day stay. Secondly, that this honourable court having pronounced itself in the matter and the Applicants having been granted 14 days stay of execution, this court is *functus officio* and it cannot entertain the current application. Thirdly, that the application herein is filed contrary to section 7 of the Civil Procedure Act , 2010 and therefor the honourable court lacks jurisdiction to entertain it. Fourthly and lastly, that the application is scandalous, frivolous and vexatious, bad in law and otherwise an abuse of the court process. 10. The 1st – 13th Objectors indicated to the court that they were in support of the application. Both parties filed their written submissions pursuant to the court’s directions. 11. Having considered the application, the supporting and replying affidavit, Preliminary Objection as well as the submissions filed by the parties, the issues for determination are whether the court should grant a stay pending appeal and whether the Preliminary Objection is merited. 12. An appeal does not, by itself, suspend the operation of a judgment. Were the position otherwise, every unsuccessful litigant would obtain a stay simply by filing an appeal. The law therefore entrusts the Court with a discretion to grant a stay, but only where the Applicant satisfies the conditions prescribed by Order 42 Rule 6 of the Civil Procedure Rules. 13. Order 42 Rule 6(1) of the Civil Procedure Rules provides: *“(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.”* 14. Order 42 Rule 6(2) of the Civil Procedure Rules further provides: *“(2) No order for stay of execution shall be made under subrule (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.”* **15. The Rule prescribes the conditions that an applicant must satisfy before an order of stay may issue. The applicant must demonstrate that substantial loss may result unless the order is granted; that the application has been brought without unreasonable delay; and that such security as the Court may order has been furnished for the due performance of the decree or order ultimately binding upon it.** **16. The Court's discretion is informed by the need to hold in careful equilibrium two competing rights. The first is the Applicant's right to pursue an appeal so that it is not rendered nugatory by premature execution. The second is the Respondent's equally legitimate entitlement to the fruits of a judgment lawfully obtained. Neither interest enjoys automatic precedence over the other. The Court's task is to reconcile them in a manner that accords with the statutory framework and the interests of justice.** See the principle in **Butt v Rent Restriction Tribunal [1979] KLR.** **17. T**he Court must now determine whether, on the material placed before it, the Applicant has satisfied the cumulative requirements of Order 42 Rule 6(2) of the Civil Procedure Rules so as to warrant the exercise of the Court's discretion. 18. The present application seeks to stay execution pending appeal following the court’s dismissal of the Applicant’s application to set aside the judgment and decree of this court dated 22nd March 2019. 19. The law recognizes a limited residual jurisdiction in the court to grant stay of execution pending appeal. Order 42 Rule 6(1) of the Civil Procedure Rules expressly empowers the Court to grant such relief for sufficient cause. This jurisdiction is preservatory in nature. It does not entail a reconsideration of the merits of the impugned decision. 20. As was articulated in **Madhupaper International Limited v Kerr [1985] eKLR**, a court is not rendered *functus officio* merely because it has delivered its ruling; it retains jurisdiction to grant interim relief to preserve the subject matter pending appeal. Such jurisdiction, however, is discretionary and must be exercised with caution, particularly where granting relief would inflict greater hardship than it would prevent. 22. The question, then, is whether the Applicant has brought himself within the parameters of this jurisdiction. Under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant must demonstrate that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that such security as the Court may order has been offered. These are not idle requirements. They are the conditions upon which the Court’s discretion is exercised. 23. In the present case, the application was made within less than two weeks of delivery of the ruling appealed from. Therefore, question of delay does not arise. 24. The second question I must determine is whether the Applicants have demonstrated that they stand to suffer substantial loss if a stay of execution is not granted. 25. The Applicants contend that they have been in occupation of the suit premises for many years as the same forms their matrimonial home where they have constructed permanent dwellings and if evicted, they would be rendered homeless thereby suffering irreparable loss. 26. The eviction orders sought to be stayed were issued in enforcement of rights that had already been determined way back in March 2019.The Court had satisfied itself that the Respondents were entitled to vacant possession. 27. Moreover, the Respondents contend that in its ruling delivered on 30th October 2025, the court explained that one of the reasons it could not set aside the judgment was because partial execution of the decree had already taken place and that some of the parcels of land had been transferred to 3rd parties whose vested rights would be adversely affected if the judgment was set aside. They were therefore of the view that the application has been overtaken by events 28. If indeed execution has has already been carried out and some of the suit properties have been transferred to third parties, staying execution would prejudice the rights of third parties who are not parties to this suit. rve has already been overtaken by events. In such circumstances, a stay of execution cannot issue. 29. Even assuming, for argument’s sake, that execution is still imminent, the Applicant must demonstrate substantial loss. The mere fact of eviction, without more, is not sufficient where the occupation complained of has already been found to be unlawful and where the rights of the opposing party have been conclusively determined. The Court cannot, under the guise of preserving the subject matter, impede the enjoyment of rights that have already accrued, absent compelling justification. 30. Regarding the third condition for stay, the Applicants have not demonstrated that they are willing to furnish security for costs. 31. While this Court retains a narrow jurisdiction to grant a stay of execution under Order 42 Rule 6, the present application exceeds that remit. On the evidence before the Court, the Applicant has not satisfied the conditions for the exercise of this discretion, and the application therefore fails. 32. Having comprehensively considered the application for stay, I do not wish to delve deep into the issue of the Preliminary objection save to state that I agree with counsel for the Applicants that the same does not meet the threshold in the celebrated case of **Mukisa Biscuit Manufacturing Company limited v West End Distributors Limited (196) E.A 696** as it alludes to the previous ruling of this court which is a fact that the court would have to consider. 33. Secondly, I do not agree with the submission of counsel for the Plaintiff/Respondent that the granting of a stay pursuant to an oral application renders the matter *res judicata.* 34. Accordingly, this Court finds as follows: 1. ***The Preliminary Objection lacks merit and the same is dismissed.*** 2. ***The Applicant has not demonstrated that the threshold for the exercise of the Court’s residual jurisdiction to grant a stay of execution pending appeal has been met. The application is therefore dismissed with costs to the Plaintiff/Respondent.*** **Dated, signed and delivered virtually at Malindi this 28th day of July 2026.** **...............................** **J. M ONYANGO** **JUDGE** **In the presence of:** 1. Mr. Kaburu for the Plaintiff 2. Mr. Wanda for the Interested Parties 3. Ms Kibebeo for the 1st-13th Objectors