https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3401

Omurwa v Moronya & 4 others (Environment and Land Case 345 of 2016) [2026] KEELC 3401 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3401 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Case 345 of 2016 AA Omollo, J June 4, 2026 Between Mary Omurwa Plaintiff and Evans Oruta Moronya 1st Defendant James Oreko 2nd Defendant Co-Operative Bank Of Kenya Ltd 3rd Defendant Land Registrar Kisii 4th Defendant Hon Attorney General 5th Defendant Ruling 1.The 1st Defendant has filed the notice of motion application dated 19th September 2025 seeking for orders of stay of execution pending determination of his appeal lodged before the court of appeal. The application is supported by the grounds on its face inter alia;a.That the 1 st Defendant/Applicant has sufficient cause for seeking an order of stay in that, if the said stay of the execution is not granted, the 1 st Defendant/Applicant's appeal will be rendered nugatory and the Plaintiffs/Applicants will suffer substantial loss.b.That the 1st Defendant/App1icant is apprehensive that the Plaintiff/Respondent is likely to dispose of and/or transfer the subject matter, hence put it beyond the reach of the 1st Defendant/Applicant in the event he succeeds in the appeal 2.The Plaintiff/decree holder opposes the grant of orders of stay of execution. She filed a replying affidavit sworn by her donee of power of attorney, Linet Omurwa on 5th February, 2026. She deposes that as the decree holder, the Respondent is entitled to enjoy the fruits of her judgment. She avers that the application as filed does not meet the threshold of Order 42 rule 6(2) of the Civil Procedure Rules. 3.The Plaintiff also deposed that the fact that an appeal has been lodged is not a sufficient reason to warrant granting a stay of execution of the decree. She asserts that this being a land matter, no amount of security will be sufficient to protect the decreeholder if the appeal fails. However, she urged that security be provided in the event the application for stay of execution is granted to protect her interests, which include substantial vandalism to the suit property. 4.I have read and considered the parties’ respective submissions filed in support of and against the grant of the orders of stay of execution. The court in exercising its discretion to grant or refuse stay follows the provisions of order 42 rule 6(2) of the Civil Procedure Rules. 5.Order 42 rule 6(2) states that;“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.” 6.It beholds this applicant seeking orders of stay to prove that he will suffer substantial loss unless the decree is stayed. A copy of the judgment was annexed by both parties and in paragraph 27, Munyao Sila J (as he then was) nullified the Applicant’s title and also nullified the charge registered in favour of the Cooperative Bank (3rd Defendant). The judge proceeded to direct the Land Registrar Kisii to nullify and cancel the entries nos. 4, 5 and 6 in the register. 7.In her replying affidavit, the Plaintiff/Respondent has expressed her desire to execute the judgment arguing that execution is a lawful process. In paragraph 8 of her replying affidavit, she deposes that she is within her rights to alter the boundaries, nature or character of the suit land and dispose it. All this is evidence that if the Court does not stay the decree, the Respondent is likely to dispose of the property, which action may negate the appeal in the event the Applicant becomes successful, which in my view may result in substantial loss. 8.The Plaintiff also argued that the mere filing of an appeal is not sufficient justification to grant a stay of execution. However, the Rules do not permit this court to consider whether or not the Applicant has an arguable appeal. This is stated in order 42 rule 6 (4) of the Civil Procedure Rules thus;“For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.” 9.Whether the nature of the decree requires provision of security as a condition to grant the stay. From the terms of the judgment as set out under paragraph 28 of the judgment, it is discernible that the 1st Defendant/Applicant is in possession of the suit property. The Plaintiff/Respondent urged that in the event the orders are granted, the security to be furnished in the nature that would preserve the suit property from vandalism. Her fears are well founded and the court does take the same into consideration. 10.Therefore, I am satisfied that the Applicant deserves to be granted stay of execution of the decree to allow him exercise his right of appeal. I do so grant the order but it is conditional on the following terms:a.The Applicant shall not alter the status of the suit property during the pendency of the order of stay of execution.b.The order of stay is granted for a period of twelve (12) months from the date of this ruling. Upon expiry, he is at liberty to move the court of appeal for any further orders. 11.Although costs follow the event, the appropriate order I issue is that the costs abide the winner in the appeal proceedings before the Court of Appeal. DATED, SIGNED AND DELIVERED AT KISII THIS 4TH DAY OF JUNE, 2026A. OMOLLOJUDGE