https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4582

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT KILGORIS** **ELC (LA) E008 OF 2026** **JOSEPH MOMANYI ONDARI………………………………………………….APPLICANT** **VERSUS** **EUNICE TETYIAN KONCHELLAH ………………..………………………1ST RESPONDENT** **MOSES KOMENTAI KONCHELLAH……………….……………………2ND RESPONDENT** **RULING** BENII 1. The Ruling is in respect of the Notice of Motion application dated 22.04.2026 seeking the substantive relief of a stay of execution of the judgment and decree dated 26th of March 2026 in Kilgoris ELC No. E055/2025 2. The grounds in respect of the application being *interalia* that: 3. The Applicant is aggrieved by the Judgment delivered on 26th of March2006 in Kilgoris CM ELC no. E055 of 2025 and has filed an appeal against the said judgment, which appeal has an overwhelming chances of success. 4. The respondents have started ploughing and cutting down trees which actions will lead to the Applicant to suffer irreparable loss and render the appeal nugatory. Appellants stand to suffer substantial loss if execution proceeds before Appeal is heard and determined. iii) Application has been made in good faith and it is in the interest of justice that the Application be heard and the orders be granted. 1. The Application is further supported by the supporting affidavit of Joseph Momanyi Ondari, who reiterates the grounds in support of the application, and is opposed by the Grounds of opposition dated 21st of March 2026 which raises the grounds *interalia*; - 2. That the Application is legally untenable for offending order 9 rule 9 of the Civil Procedure Rules. That no prima facie Appeal with chance of success has been exhibited. 3. That the filing of an Appeal does not guarantee an automatic stay of execution. 4. That the Application does not disclose a cause of action and no irreparable loss has been demonstrated. 5. Oral submissions in respect of the Application were heard, and have been considered. 6. Mr. Aminga learned counsel for the Applicants submitted that he relied on the grounds on the face of the application and that the Applicant was the defendant and counter-claimer before the trial court and has appealed against judgment and thus seeks to preserve the subject matter. That the Application has been made timeously and has demonstrated an arguable appeal as the Appeal raises serious issues of law and fact and there is likelihood that the suit property may be alienated and/or transferred yet he has developed the same. Hence the prayer for an injunction pending appeal so as to preserve the status quo. 7. Mr. Aminga further argued that he has met the threshold under order 42 rule 6 in that the Application was filed timeously and that there is a likely hood of substantial loss and that the Applicant is ready and willing to abide by the terms that the court may issue in terms of security. He urged the court to allow the application. 8. On his part Mr. Otieno learned counsel for the Respondent, submitted that the Application was fatally defective having been filed by an advocate who is a stranger in the proceedings in contravention of order 9 rule 9 of the Civil Procedure Rules there being no Leave granted to the Advocate to come on record after Judgment thus rendering the Application defective. Reliance was placed on the decision in the case of **Jacob Gichuhi Wanyanga vs Hannah Wanjiru Wanganya.** 9. Mr. Otieno learned counsel further submitted that the threshold for grant of stay of execution pending Appeal under order42 rule 6 had not been met in that the Applicant has not demonstrated an arguable appeal and since Land is an immovable property if the Appeal succeeds damages would not be an adequate relief and no security has been deposited. 10. In a brief rejoinder Mr. Aminga submitted that an appeal is a distinct proceeding from the proceedings that were before the trial court. He reiterated that there is an arguable appeal and that the Application was filed timeously. **Issues for determination** 1. Having analyzed the application and the rival submissions, and considered the law, the court frames the issue for determination as to 2. Whether or not the application is competent? 3. Whether or not the application is merited? 4. what reliefs ought to issue? 5. Who bears the costs of the application. **Analysis and Determination** 1. The respondent submitted that the Application was filed a by a stranger since no leave had been granted for the counsel to come on record after judgment. In response to this the Applicant submitted that an Appeal is a new proceedings. 2. The court of Appeal had occasioned to determine whether leave ought to be sought for an Advocate to come on record after judgment in an appeal; and settled the issue in its decision in the case of **Tobias M. Wafubwa vs. Ben Butali 2017 (eKLR),** where it was observed *interalia* that an appeal is a new proceeding hence parties should therefore have a right to choose whether to remain with the same counsel or not. The court held *interalia*, ***“we are of the same view and would adopt the same approach in its entirety in matters concerning appeals, once a judgment is entered save for matters such as applications for review or execution is entered, interalia, An appeal to an Appellate court is not a continuation of proceedings in the lower court but a commencement of new proceedings in another court where different rules may be applicable for instance, the court of Appeal Rule 2010 and Supreme court Rules 2010 parties should therefore have the right to choose whether to remain with the same counsel or to engage another counsel on appeal without being required to file a Notice of change of Advocates or to obtain leave from the concerned court to be place on record in substitution of the previous Advocates…”*** 3. In view of the above position the court finds that no leave was required for the current firm of advocates to come on record after judgment and that the application is not incompetent as contended by the Respondent. Thus, in answer to issue no 1 the Application is competent 4. On issue no. 2 as to whether the Application is merited the court shall consider whether the Application meets the threshold for stay of execution under Order 42 rule 6 which provides for the principles thereunder as follows; - **“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 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**.” 1. Have the said conditions been met and turning to the said and on whether the Application was filed timeously. The Appeal herein was filed on 9th of April 2026, while the application for stay filed on 22nd April 2026. The court thus finds the Application was timeously. 2. On security The Applicant has not deponed on the issue of security but has submitted on the willingness to deposit such security as may be ordered for performance of the decree. 3. On substantial loss, the Applicant has deponed that if execution is to proceed then he will suffer substantial loss in terms of eviction from the property that he has extensively developed. 4. The issue of the intended Appeal being arguable and nugatory aspect, are not issues to be considered under order 42 Rule 6 but are issues to be considered in respect of a stay of execution Application under Rule 5(2) B of the Court of Appeal Rules and the court shall not dwell on them. 5. The court finds on a balance of probabilities that the application is merited and allows the same in terms that; 6. There shall be a stay of execution of the judgment and decree issued on 26th of March 2026. 7. The Applicant shall deposit Kshs. 100,000 as security for performance of the decree within 21 days from today failure to which the orders for stay of execution shall lapse. 8. Costs of this Application shall be in the course. Dated at KILGORIS this 20th Day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Gilbert Ms. Mweni h/b for Mr. Otieno for Respondents Mr. Aminga h/b for Mr. Nyariki for Applicant/Appellant