https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3935

Osman v Esinyon (Environment and Land Appeal E013 of 2026) [2026] KEELC 3935 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELC 3935 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Appeal E013 of 2026 CG Mbogo, J June 19, 2026 Between Abdikadir Osman Appellant and Isaiah Echom Esinyon Respondent Ruling 1.The applicant Abdikadir Osman moved this court by way of a Notice of Motion dated 25/5/2026, in which he is seeking the following orders in the main, that;1.…spent.2.…spent.3.That this Honourable Court be pleased to grant an order for stay of proceedings in MCELC/E001 of 2025 in the Magistrate’s Court at Lodwar, pending the hearing and determination of the appeal.4.That this Honourable Court be pleased to grant an order for stay of execution of the of the orders of the Magistrate’s Court at Lodwar in MCELC/E001 of 2025 by Hon. Evanson Ngigi on 6/5/2026. 2.The application is based on the grounds that, on the face of it, mainly, the honourable court erred in law and in fact in shifting the burden of proof from the respondent, and that the court erred in law and fact for not holding that it lacks jurisdiction to make the orders sought in the application dated 14/10/2025. The applicant further contends that the honourable court erred in law and in fact in failing to hold that the failure to identify the suit property in a plaint/claim on trespass is fatal under Order 4 Rule 4 of the Civil Procedure Rules. 3.Further, the applicant in the instant application is faulting the lower court for failing to hold that the respondent’s application dated 14/10/2025 is a fishing expedition and an attempt to cure a defective plaint, and that the lower court also failed to hold that the filing of a defence does not cure a defective plaint. 4.At paragraph 4 of the application, the applicant set out the facts disclosing the grounds of appeal and further gave a summary of each party's contention in the case. 5.In a nutshell, the facts according to the applicant are that the respondent filed a suit for trespass against the applicant(appellant). The respondent did not identify the suit property and did not put forth any evidence to prove ownership of the suit property. 6.Further, the applicant states that he filed his statement of defence on 29/8/2025, and that owing to the respondent’s failure to identify the suit property, he (applicant) attacked it as frivolous, vexatious, and an abuse of the court process and filed an application dated 5/11/2025 seeking that the plaint be struck out for lack of sufficient description of the suit property. 7.The applicant further stated that the respondent equally filed an application dated 14/10/2025, in which he prayed inter alia, that the County Surveyor, Turkan County, be appointed as an independent surveyor to visit, identify, and ascertain the actual location, boundaries, and description of the property known as Plot No. 459 (formerly Plot No. 4654). 8.The applicant contends that it is this latter application that was allowed by the court, while his application was dismissed, which exposed the errors by the trial court that led to the appeal against the impugned ruling and the application for a stay of the proceedings before the trial court. 9.The appellant’s application is further supported by the affidavit of even date setting out the facts giving rise to the said application. It is noteworthy to mention that the said affidavit basically reiterates the grounds and the facts set out in the application. 10.The respondent in the appeal and in this application filed grounds of opposition dated 10/6/2026, as well as a replying affidavit of even date in opposition to the application for stay of proceedings in the lower court, as well as stay of execution of the orders emanating from the impugned ruling. 11.When the application came up for hearing before this court, Mr. Noor, learned counsel for the applicant, relied on the grounds set out therein and the supporting affidavit on record. Counsel further invited the court to find that the appeal would be rendered nugatory if stay orders are not granted. Counsel further submitted that the appellant has an arguable appeal and that it would save judicial time by not allowing the trial court to proceed with the matter while this appeal awaits canvassing. The learned counsel further contends that no prejudice will be suffered by the respondent, who could be compensated by way of costs, and that a grant of the order sought would avoid the possibility of two parallel judgments that would embarrass the court. 12.On his part, Mr. Nabenyo, learned counsel for the respondent, submitted that the orders sought by the applicant are serious in nature, as the court is being asked to freeze the proceedings in the lower court, which has the net effect of interfering with the litigant’s right to have the case heard and determined expeditiously. 13.The learned counsel further submitted that the jurisprudence around this issue is that such an order can only issue in extraordinary circumstances, and made reference to the case of Global Tours and Travels Ltd vs 5 Continents Travel Ltd [2015] eKLR, as well as Kenya Wildlife Service vs James Mutembei [2018] eKLR. 14.Counsel further argued that stay of execution and of proceedings are grave judicial remedies which the court ought to grant in extreme circumstances, and that the applicant has not demonstrated that he would suffer substantial loss. Counsel further contended that the lower court exercised its jurisdiction judiciously and that the application is intended to delay the matter before the lower court. 15.Finally, learned counsel for the respondent contended that the appeal has no chances of success and that the appeal would also not dispose of the entire suit as the court has been told. He thus urged the court to dismiss the application. 16.In a rejoinder, Mr. Noor for the applicant stated that the principles governing the grant or refusal to grant orders for stay of proceedings or execution are well set out and fairly straight orward and that failure to provide judicial authority is not fatal to the applicant’s case. Counsel further submitted that on a balance of convenience, the applicant has the right to appeal, which is equal to the right to be heard. On the issue of substantial loss, counsel contended that the applicant would suffer irreparable loss if the orders sought are not granted. Counsel urged the court to grant orders in terms of prayer (2) in the interim period, given that the matter was scheduled before the trial court on 17/6/2026. 17.I have carefully considered the application, the rival affidavits on record, the grounds of opposition by the respondent, as well as the oral submissions by both counsel, for which I am grateful. I have also had the occasion to read the impugned ruling by Hon. Evanson Ngigi, SPM, as well as the grounds of appeal lodged in this court. 18.From the totality of the rival affidavits and the submissions by counsel, the issues that I consider material for determination are:i.Whether this court ought to grant an order for stay of the proceedings in the lower court in MCELC/E001 of 2025 in the Magistrate’s court at Lodwar, pending the appeal.ii.Whether this court ought to grant stay of the orders issued by the said court on 6/5/2026. 19.For the avoidance of doubt, this court has powers by dint of Section 13(4) of the Environment and Land Court Act to exercise appellate jurisdiction over the decisions of subordinate courts in respect of matters falling within the jurisdiction of the court. 20.Turning now to the first issue for determination, I am minded to note on record that stay of proceedings before a court of law is a serious recourse, as it fetters a party’s right to conduct litigation and access to justice as provided for under Article 48 of the Constitution. It is only to be granted in the clearest of cases and in exceptional circumstances. 21.In the case of African Marine and General Engineering Co. Ltd vs Phillip, Appeal No. E234 of 2024 [2025] KEELC 812 [KLR], the court, while citing the earlier case of M/S Karsan Ramji & Sons Ltd vs Athumani & Onother (Suing for and on behalf of Wamwanyundo Clan & 6 Others [2024] KECA 563 [KLR] observed that indeed stay of proceedings is a serious, grave and fundamental judicial action that interferes with any party’s right to conduct litigation. That it impinges on the right of access to justice and the right to a fair trial. 22.It follows, therefore, that the court must balance the interests of both parties, ensuring that the appellant’s right of appeal is protected while minimizing prejudice to the respondent. 23.In a clear-cut merited appeal, such as where significant questions of law are raised, such as the lower court’s jurisdiction to hear the matter, or that the suit is time-barred by limitation of action, the court will not hesitate to make an order for stay of proceedings to determine the jurisdictional issue, which is fundamental to the case. 24.Equally, prejudice to the parties must be demonstrated by a party seeking to stay proceedings. The applicant must demonstrate they stand to suffer substantial loss if the trial court proceeds before the appeal is heard, as this could render the appeal nugatory. The court must also have regard to the balance of convenience, particularly where a jurisdictional issue is raised that is fundamental to the case, as it would prevent the trial court from potentially rendering a judgment in a matter where it may lack jurisdiction. 25.Looking at the facts of this case, and without going to the substance of the merits of the appeal, I am unable to find a grave fault in the ruling of the learned trial magistrate that meets the high threshold required to warrant an order for stay of proceedings. 26.I am further persuaded that the applicant in this case would still have a recourse to appeal the final decision of the trial court at the superior courts if not satisfied by the findings thereof. I thus find and hold that no substantial loss is demonstrated to be suffered by the applicant by the orders requiring the County Surveyor to visit the site and file a report in respect of the twin issues, whether the property claimed by the plaintiff comprises Plot No. 459 (formerly Plot No. 4654) and the current registered owner of the said plot as per the Land Registrar. 27.I further determine that I find no basis to make an order of stay of proceedings in MCELC/E001 of 2025 at the Magistrate’s Court in Lodwar, as I have been invited to do. 28.Turning to the second issue of stay pending appeal, the applicable law is Order 42 Rule 6 of the Civil Procedure Rules. The applicant must prove that he will suffer specific, irreparable loss or damage if the stay is not granted and the decree is enforced; that the application has been made without unreasonable delay, and that 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. 29.The court in the case of Muchiri vs Rutere ELC No 319 and 316 of 2017 (consolidated) [2023] KEELC 22377 [KLR], held that:“Stay of execution pending appeal is a discretionary power bestowed upon this court by law. In Butt vs Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal gave guidance on how a court should exercise the said discretion, and held that:(a)The power of the court to grant or refuse an application for a stay of execution is discretionary. The discretion should be exercised in such a way as not to prevent an appeal.(b)The general principle in granting or refusing to stay is, if there is no other overwhelming hindrance, a stay must be granted so that the appeal may not be rendered nugatory should the appeal court reserve the judge’s decision.(c)…(d)…(e)The court, in exercising its power under Order XL1 Rule 4(b)(b) of the Civil Procedure Rules, can order security upon application by either party or as its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.” 30.These legal principles have been recited time without number in several other judicial authorities, including the case of Khaki & 28 Others vs Juma & 5 Others [2025] KEELC 333 [KLR]. 31.Turning again to the matter before me, it is instructive to note that the matter before the lower court has not been heard on the merits. The court only allowed one application, while dismissing another. The gist of the impugned ruling is that the lower court required a report from the County Surveyor, which report would shed light on the circumstances surrounding the ownership and boundaries in respect of the suit property. There is no telling what the court’s ultimate finding and determination will be after hearing all the evidence and having it tested through the time-honored way of establishing the truth, which is cross-examination. 32.My considered view, therefore, is that no substantial or irreparable loss can be said to have been suffered by the applicant or is likely to be so suffered as a result of the ruling of the lower court. Even though this application has been made timeously, the ruling of the lower court having been made on 6/5/2026, I am not persuaded that this is a fit case to make an order for stay of execution pending appeal and stay of proceedings. The appeal and the substance of the appeal will not be rendered nugatory because the applicant will still have a legal recourse to appeal the judgment of the lower court should he not be satisfied with the same. 33.The upshot is that I find the application dated 25/5/2026 to be without merit. The same is dismissed. Costs shall abide by the outcome of the appeal. 34.Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 19TH DAY OF JUNE 2026.HON. G.M. GITONGAJUDGE, ELC KITALE.In the presence of:Court Assistant - Matui/NancyMr. Nabenyo for the respondentMr. Noor for the applicant