https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4535

**REPUBLIC OF KENYA.** **IN THE ENVIRONMENT & LAND COURT AT KISII.** **LAND CASE NO. 82 OF 2017.** PAULINE MORAA ARASA suing as personal rep. of the estate of the late SOSPETER A. NYAGWANSA ……………PLAINTIFF/RESPONDENT VERSUS DR. ANIL RATILAL TAILOR…………..1ST DEFENDANT/APPLICANT NATIONAL LAND COMMISSION……..……………. 2ND DEFENDANT THE COUNTY GOVERNMENT OF KISII…..……..… 3RD DEFENDANT EDWARD MAINGA KAGORA-…………….…………4TH DEFENDANT **JUDGMENT** 1. For determination is the application for stay of execution pending appeal dated 15th March, 2026. The 1st Defendant/Applicant avers that at all times it was the registered proprietor of that piece of land known as L.R. No. Kisil Municipality/block III/330 (hereinafter referred to as "the suit premises"). 2. This Court, in its judgment, ordered the applicant to vacate the suit premises and demolish the storey building he has put up thereon within thirty (30) days - a period of time which will lapse on 19th March, 2026. That the applicant contends that it will be gravely prejudiced and shall suffer substantial loss on account of loss of title to the suit premises. Besides, it asserts that the applicant has undertaken substantial developments on the same to vastly increase its value to the extent that he obtained a loan of Kshs.50,000,000.00 on the security of the suit premises. 3. The Applicant pleaded further that the demised premises are operated as a nursing school known as RAM SCHOOL OF NURSING with enrolled students currently in session. It also impleads that the investment value of the suit premises is good, sufficient and reasonable security in the circumstances of this case, to guarantee eventual performance of the decree of the court. The applicant further undertakes not to dispose of the suit premises pending hearing and determination of its intended appeal. 4. Vide a replying affidavit sworn on 1st April, 2026, the Plaintiff/respondent opposed the application stating it lacks substance. She denies that the Applicant is the registered owner of the suit property, urging that the certificate of lease issued to the said 1st Defendant/applicant is /was obtained irregularly and/or through unlawful means. 5. The Respondent deposes that she has been told by her advocate on record, whose information she believes, that a negative order cannot be stayed. The said 1st defendant/applicant filed the counterclaim, in which he requested the Honourable Court to declare that he is the bona fide proprietor of the leasehold interest comprised in the land parcel LR. NO. KISII MUNICIPALITY /BLOCK III/330. That the 1st Defendant lost the counterclaim, hence a negative order which cannot be stayed. 6. THAT the said 1st defendant/applicant cannot engage this court by filing the instant Notice of Motion based on a certificate of lease which has been declared a nullity by the court. There is no basis laid by the said 1st defendant/applicant to warrant the issuance of the said orders. 7. Both parties filed written submissions for and against the grant of the orders sought. The applicant submits that its appeal will be rendered nugatory should execution proceedings be taken out - the essence of the appeal would be lost if execution took place, because premises standing on the suit premises would be destroyed and therefore lost. No evidence of the Respondent's ability to pay the developed value of the suit premises has been demonstrated. The Applicant cited several cases in the submissions. 8. The Respondent cited in **ELC at Bungoma Land Case Appeal e025 of 2024 John Wanjala Omari versus Gertrude Nekesa Barasa & another (Cherono, J**). The said court while commenting in the case of **Kaushik Panchamatia & 3 others versus Prime Bank Limited & Another (2020)** stated as follows *"We reiterate the position taken by the court in the above case that a negative order is incapable of being stayed because there is nothing to stay. It therefore, follows that in light of the above threshold we have no mandate to grant a stay order in the manner prayed by She applicant".* 9. The 1stDefendant filed a counterclaim in which he claimed the said parcel of land. The honourable court found that the said certificate of lease issued to the 1st Defendant was irregular. 10. Since the said certificate of lease was obtained through fraud, the Court has ordered the cancellation of the said certificate of lease issued to the said 1st defendant/applicant. It is for that reason that the plaintiff/respondent contends that the certificate of lease issued to the 1st defendant/applicant, having been ordered to be cancelled, cannot thereafter request this honourable court to grant an order of stay of the said judgment, particularly when the counterclaim filed by the 1st defendant/applicant was dismissed. There is nothing to stay. 11. She added that the said 1st defendant/applicant has not satisfied the conditions for the grant of an order of stay. **Analysis and Determination:** 1. The principles governing the grant of a stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules. There is no dispute that the application has been brought without undue delay. The question for determination is whether the Applicant has demonstrated that it is likely to suffer substantial loss unless the execution of the decree is stayed. 2. The Applicant explained the nature of the loss it is likely to suffer, namely eviction from the suit premises and the cancellation of its title deed. The judgment in favour of the Respondent declared that the Applicant’s title was irregularly acquired and ordered its cancellation. Therefore, the execution of the decree will inevitably result in the Applicant's dispossession of the suit property, which constitutes a substantial loss. 3. The argument by the Respondent that the orders of stay do not lie because of the dismissal of the Applicant’s counterclaim would be true if the Respondent’s suit had also been dismissed. However, she has favourable orders capable of being executed and which the Applicant moved the court to stay. 4. Consequently, if the Applicant were to succeed, the appeal would be rendered nugatory in light of the business and the development the Applicant has established on the disputed plot. It is imperative that the stay order be granted to preserve the suit property pending the determination of the appeal. 5. The Applicant has undertaken to comply with the terms of security that this Court will set. In the circumstances of this case, the security should be provided to secure the Respondent's legal costs awarded in this suit and the costs of executing the decree, should the Appeal be unsuccessful. I hold that the sum of Kshs 5,000,000 is a reasonable amount to be deposited in a joint interest account in the names of the advocates for the 1st Defendant/Applicant and the Respondent within 90 days of this ruling. 6. In conclusion, the order for stay is granted pending appeal lodged before the Court of Appeal, on condition that the deposit of security is provided as set out above. In default, the orders granted lapse. The costs of this application are to the Respondent. **Dated, Signed and Delivered at Kisii this 13th day of July, 2026.** 1. **OMOLLO** **JUDGE**