https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5318

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF AT MILIMANI** **ENVIRONMENT AND LAND CASE LAND APPEAL NUMBER: E118 OF 2026** **MOHAMED ABDULLAHI OSMAN……………………………………………………………APPLICANT/APPELLANT** **VERSUS** **OMAR HASSAN OSMAN ………………………………………..……… 1ST RESPONDENT** **AHMED KHER ………………………………………………..…………..2ND RESPONDENT** **TOM MOSOTI ………………………………………………….…………3RD RESPONDENT** **AND** **TINGA TRADERS LIMITED ………………………………………INTERESTED PARTY** **RULING** **A-Introduction**: 1.Before this Court is a Notice of Motion dated 10th June 2026 brought under Sections 1A, 1B, 3A, 63(e) and 79G of the Civil Procedure Act, Cap. 21; Order 42 Rule 6, Order 40 Rules 1, 2 and 4, Order 43, and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 3, 13 and 19 of the Environment and Land Court Act and all other enabling provisions of the law where the applicant seeks the following reliefs: 1. *spent* 2. *THAT pending the inter partes hearing of this Application, this Honourable Court be pleased to issue an order staying the execution, enforcement, operation and implementation of the order issued on 5th June 2026 in Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025, to the extent that the said order stayed the consent order issued on 4th March 2026.* 3. *THAT pending the inter partes hearing of this Application, a temporary prohibitory injunction do issue restraining the Respondents, whether by themselves, their servants, agents and/or any persons claiming under them, from trespassing upon, breaking into, evicting, intimidating, harassing, interfering with, alienating, assigning, subletting, altering, renovating, disposing of assets from, operating from, or in any manner whatsoever dealing with the suit premises situate at Tinga House, Dubois Road, Nairobi, LR No. 209/5525/21, to the prejudice of the Appellant/Applicant.* 4. *THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to issue an order staying the execution, enforcement, operation and implementation of the order issued on 5th June 2026 in Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025, to the extent that the said order stayed the consent order issued on 4th March 2026.* 5. *THAT pending the hearing and determination of this Appeal, a temporary prohibitory injunction do issue restraining the Respondents, whether by themselves, their servants, agents and/or any persons claiming under them, from trespassing upon, breaking into, evicting, intimidating, harassing, interfering with, alienating, assigning, subletting, altering, renovating, disposing of assets from, operating from, or in any manner whatsoever dealing with the suit premises situate at Tinga House, Dubois Road, Nairobi, LR No. 209/5525/21, to the prejudice of the Appellant/Applicant.* 6. *THAT pending the hearing and determination of this Appeal, there be a stay of further proceedings, directions and/or consequential steps in respect of the 1st Respondent's Notice of Motion dated 4th June 2026 before the Chief Magistrate's Court in Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025, in so far as such proceedings relate to the discharge, variation, enforcement or implementation of the consent order issued on 4th March 2026, or such limited protective orders as this Honourable Court may deem fit for purposes of preserving the substratum of the Appeal.* 7. *The costs of this Application be in the cause.* 2.The Application is supported by the affidavit of Mohamed Abdullahi Osman, sworn on 10th June 2026 and based on grounds on the face thereof. 3.The Applicant/Appellant deposed that the exparte order issued on 5.6.2026 temporarily stayed the consent order dated 4.3.2026 duly recorded by the Advocates for the parties that preserved Applicant’s occupation of the suit premise situate at Tinga House, Dubois Road, Nairobi, L.R. No. 209/5525/21 pending hearing and determination of the application dated 6.2.2026 thereby exposing him to risk of being evicted out of the suit premise and his business to risk of interference by 1st Respondent or his agents/servants hence the substantial loss and prejudice likely to be suffered if the application is not allowed. 4.The Appellant/Applicant contended that temporary stay order dated 5.6.2026 issued by the Trial Magistrate in milimani mcelce430/2025 between Mohаmed Abdullahi Osman (Plaintiff) vs Omar Hassan Osman& 2 Others (Defendants) and interested party was based on misrepresentation of facts by the 1st Respondent/Applicant of non-disclosure of material facts pertaining the ruling dated 28th December 2025, which he expressly disclosed and annexed to his application dated 6th February 2026. 5.The Applicant/Appellant deposed that the application has been filed timeously and is willing to abide by the conditions set by the court for provision of security. The Applicant urged that pending hearing and determination of the appeal an order for stay of proceedings in Milimani Mcelce430/2025 and execution, implementation of the order dated 5.6.2026 be granted as the appeal raises arguable/triable issues. The Applicant/Appellant urged for costs of the application to be in the cause pending hearing and determination of the appeal. 6.The 1st Respondent in his Replying Affidavit dated 29.07.2026 opposed the application by deposing that it is an abuse of court process as applicant /appellant seeks to revive interim preservatory orders over the suit premises and calling for orders stopping the Trial Magistrate from determining the application from which the temporary stay orders emanated. 7.The 1st Respondent contended that the Applicant/Appellant’s application is prematurely filed before this court for hearing and determination as the applications dated 6.2.2026, and 4.6.2026 the foundation of the consent order dated 4.3.2026 and 5.6.2026 respectively are pending hearing and determination before the trial magistrate in milimanimcelce430/2025 between Mohаmed Abdullahi Osman (Plaintiff) vs Omar Hassan Osman& 2 Others (Defendants) and interested party and should be dismissed. 8.The 1st Respondent deposed that The Applicant/Appellant has failed to establish substantial loss likely to be suffered if stay of proceedings and execution order is not issued pending the hearing and determination of appeal as the appellants’ allegations of threatened eviction, harassment, alienation of the suit premise(s,) or disposal of his business assets by 1st respondent is speculative as he has not issued eviction order , entered into an agreements to dispose of the premises and/or undertaken any actions capable of causing irreparable loss to the Applicant/appellant. 9.The 1st Respondent urged that the appeal shall not be rendered nugatory if stay of execution orders are not issued hence called for dismissal of the application dated 10.6.2026 with costs to 1st Respondent. B- **Directions of the Court.** 10.The court, by consent of the parties through their learned counsels, directed that the parties file their written submissions of which Appellant/Applicant and 1st Respondent complied vide the submissions dated 3rd August 2026 and 6th August 2026 respectively. **C-Parties Submissions.** 11.The Appellant/Applicant submitted that he has satisfied the requirements for the grant of stay of execution, prohibitory preservatory orders and stay of proceedings pending hearing and determination of appeal pursuant to Order 42 Rule 6 of the Civil Procedure Rules 2010, having filed the application without inordinate delay, demonstrated substantial loss likely to be suffered and willingness to comply with any security or conditions imposed by the Court placing reliance in the case **of RWW v EKW [2019] КЕНС 6523 (KLR**) in support of his averment. 12.The Appellant/Applicant submitted that he is likely to suffer prejudice and his appeal being rendered nugatory if he is evicted out of the suit premise pursuant to the 3-day eviction notice served upon him by the 1st respondent occasioned by issuance of the exparte stay order dated 5.6.2026.The Appellant urged that his appeal raises arguable/triable issues that warrant stay of execution of orders dated 5.6.2026 and proceedings in Magistrates Court milimani elce430 of 2025 pending hearing and determination of appeal citing the case of **Atogo v Wamboye & 6 Others (Civil Appeal 53 of 2019) [2025] KЕCA 327 (KLR)** in support of his deposition that a consent order can only be set aside on grounds of fraud, mistake or misrepresentation. 13.The Appellant/Applicant submitted that the allegation of material non-disclosure is contradictory of the court record as the ruling dated 28.12.2025 was expressly disclosed and annexed to the application dated 6 February 2026 as annexure mam- 4 while the 1st Respondent acknowledges that the consent dated 4.3.2026 was merely temporary and preservatory pending determination of the substantive dispute. 14.The Appellant/Applicant submitted that the application dated 4.6.2026 and Appeal concern the same subject matter (order dated 5.6.2026 hence the appeal shall be rendered an academic exercise and nugatory should there be no stay of proceedings in the magistrate’s court milimani elce430/2025 pending hearing and determination of the appeal. The Appellant urged that the application is meritorious and be allowed with costs to abide by the outcome of the appeal. 15.The 1st Respondent vide his written submissions on record submitted that The Appellant’s application is premature and amounts to an abuse of due process of the court as Applicant/Appellant is attempting to obtain an order reviving the consent order dated 4.3.2026 indirectly and calling for stay of proceedings to stop the trial magistrate from rendering a substantive ruling on merits of application dated 4.6.2026 between **Mohаmed Abdullahi Osman(Plaintiff/respondent) vs Omar Hassan Osman(Applicant)& 2 Others(Defendants)** and interested party. 16.The 1st Respondent urged that the order dated 5.6.2026 merely suspended the consent order dated 4.3.2026 pending inter partes determination of Application dated 4.6.2026 which order neither directed the Appellant to vacate the suit premise, surrender possession, pay any sum, nor perform any positive act hence negative in nature, not capable of execution pursuant to order 42 rule 6 of the civil procedure rules 2010. 17. The 1st Respondent contended that the order being negative cannot be stayed unless exceptional circumstances are proved by Applicant which Applicant has not citing the case of **Western College of Arts and Applied Sciences v E.P. Oranga & 3 Others [1976] KLR 63** as reaffirmed in **Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another [2020] KECA 418 (KLR)** and **Ogato v Nyaguthii & Another [2024] KECA 733 (KLR)** where the Court of Appeal held that where an order does not require a party to do or refrain from doing anything, there is nothing capable of being stayed. 18.The 1st Respondent submitted that Applicant/Appellant failed to demonstrate substantial loss that may result if stay of execution order pending hearing and determination of appeal is not issued citing the case of **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR** where the court held the applicant must demonstrate a real risk of substantial prejudice capable of rendering the appeal nugatory. 19.The 1st Respondent urged that the Applicant/Appellant has not established the principles for grant of equitable reliefs of injunction as set out in the case of **Giella v Cassman Brown & Co. Ltd [1973] EA 358 and restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR** hence not deserving of the prohibitory injunction for preservation of status quo pending hearing and determination of the appeal. 20. The 1st Respondent urged that stay of proceedings are grave and granted sparingly to prevent grave injustice being occasioned to the Applicant citing the cases of **Kenya Wildlife Service v James Mutembei [2019] eKLR, William Odhiambo Ramogi & Others v Attorney General & Others [2019] eKLR and reaffirmed in the case of Makena v Nalwa [2024] KEHC 13086 (KLR)** where the high Court stated that stay of proceedings pending an interlocutory appeal is exceptional and requires circumstances demonstrating that intervention is necessary to prevent grave injustice. 21.The 1st Respondent further submitted that no special circumstances have been established by the Applicant /Appellant to warrant stay of proceedings pertaining hearing of application dated 4.6.2026 and delivery of ruling thereof by the trail magistrate in milimani mcelcE430/2025 which application should be dismissed with costs to 1st Respondent. **D-Issues for determination** 22. Having considered the Application, Replying Affidavit and the noble rival Submissions on record, the following issues arose for determination: **a) Whether the applicant has established special circumstance(s) for granting stay of proceedings pending hearing and determination of appeal.** **b) Whether the Applicant has established grounds for granting stay of execution pending appeal.** **c) Whether the applicant’s application is prematurely filed before court.** **d) Whether the application is an abuse of court process** **e) Who to bear the costs of the application?** **E: Analysis and Determination:** 23.Section 63(e) of the Civil Procedure Act 2010, Cap 21 provides that a court can make such other interlocutory orders as may appear to the court to be just and convenient whereas Order 40 rule1,2 and 4 of the Civil Procedure Rules 2010 upon which the application is premised basically provides for circumstances under which prohibitory status quo orders may be granted pending hearing and determination of the main suit/appeal purposely to avert substantial loss and irreparable injury being suffered by the Applicant/aggrieved party as stated in the case of **Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) and reaffirmed in the case of Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] KEHC 4369 (KLR).** 24. It is trite that courts of law may grant interlocutory orders not only where it appears just and convenient but to avert substantial loss and irreparable injury being suffered by the Applicant/Aggrieved party. 25.As to whether the Applicant has established the circumstances for granting stay of proceedings pending hearing and determination of appeal, Black’s Law Dictionary, 9th Edition, defines a proceeding as: - **“1) These are regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment;(2) any procedural means of seeking redress from a tribunal or agency, (3) an act or step that is part of a larger action. (4) the business conducted by a Court or other social body, a hearing”.** 26.The court in the case of **Ferdinand Ndung’u Waititu vs Independent Electoral & Boundaries Commission (IEBC) & 8 others [2013] eKLR** persuasively stated: “A stay of proceedings involves arresting or stopping proceedings. It is still used to suspend proceedings to await the action of one of the parties in regard to some step or some act (see Black’s Law Dictionary). This implies that the rationale for stay is the pendency of an act or step either required by the court or sought by a party. It may be grounded on a statutory provision or on the need of a party and based on a plea for the plenary exercise of the court’s discretion”. 27. It is trite that stay of proceedings is a radical remedy which is granted in very exceptional circumstances as restated in the case of **Kenya Wildlife Service v James Mutembei [2019] eKLR and William Odhiambo Ramogi & Others v Attorney General & Others [2019] eKLR**, **Hassan & another v Makacy & 2 others (Sued as the Chairman, Secretary and Treasurer Respectively of East Sidaz Self Help Youth Group) (Environment and Land Appeal E224 of 2024) [2025] KEELC 3821 KLR.** 28. Based on the cited cases above it is settled that proceedings before a court of law can be stayed pending determination of an appeal upon proof of special circumstance(s)by the aggrieved party. The Applicant /Appellant therefore urged the court to stay implementation, execution of the exparte stay order dated 5.6.2026 pending hearing and determination of the appeal having been issued on misrepresentation of facts and to preserve the integrity of the suit premise whose tenancy is the subject matter for hearing and determination at the magistrate’s court in milimani elce430/2025. 29. It is submitted on record by the 1st Respondent that the order dated 5.6.2026 is negative in nature and not capable of being stayed as stated in the case of Makena **v Nalwa [2024] KEHC 13086 (KLR**) and affirmed in the case of Kuko & another v **Ali & another; Robinson (Interested Party) (Civil Application E023 of 2023) [2024] KECA 305 (KLR)34** though an appeal has been filed by Applicant/Appellant and pending hearing and determination. 30.There is no doubt the application dated 10.6.2026 was filed timeously save for special circumstance to be established by the Applicant/Appellant to warrant issuance of the orders of stay of execution pending appeal being granted. The 1st Respondent in his sworn affidavit dated 29.7.2026 stated that he has not issued an eviction order against the Applicant/Appellant, evicted him out of the suit premise or executed any further tenancy agreement with a 3rd party at the detriment of the Applicant/Appellant. 31.Section 152 (A to F) of the land Act 2012 provides an elaborate procedure/process for compliance by a party intending to evict a person out of a suit property prior to implementation of actual eviction order which so far has not been exhausted by the 1st Respondent or demonstrated by the Applicant herein to warrant issuance of temporary prohibitory orders pending hearing and determination of appeal. 32.The duty of a court of law is to hear and resolve disputes in a just, expeditious, proportionate manner as provided for in article 159 of the constitution of Kenya 2010 and sections 1A and 1B of The Civil Procedure Act,2010. Equally it is the right of every person to access justice by being accorded a fair hearing in accord with article 50 of constitution of Kenya 2010. 33.The Applicant and 1st Respondent are in agreement that the final order/verdict in regard to the application dated 4.6.2026 from which the impugned order dated 5.6.2026 emanated has not been pronounced by the Trial Magistrate in Milimani Mcelce430/2025 hence parties are yet to ascertain whether the consent order dated 4.3.2026 shall be sustained, varied or discharged which verdict/determination has a direct consequence on the order dated 5.6.2026 and occupation of the suit premise by the Applicant/Appellant. 34.The Applicant/Appellant expressly admitted in his affidavit evidence and written submissions that the subject matter in the Magistrates’ Court and Appeal herein are the same being determination of legality of exparte order dated 5.6.2026 arising from the consent order dated 4.3.2026. 35.For a party to be denied the right to access to justice, being heard (inclusive of a ruling determining an application) and determining next cause of action, the Applicant herein has to establish the special circumstance(s) that warrants stay of proceedings pending hearing and determination of the appeal as restated in the case of **Kenya Wildlife Service v James Mutembei [2019] eKLR** and **William Odhiambo Ramogi & Others v Attorney General & Others [2019] eKLR**. At close of the interparte hearing of the application dated 10.6.2026 I find that no special circumstance has been established by the Applicant to warrant stay of proceedings in Milimani Mcelce 430 of 2025 between **Mohаmed Abdullahi Osman (Plaintiff) vs Omar Hassan Osman& 2 Others (Defendants) and interested party**. 36.As to whether the application is premature and an abuse of court process ,considering pendency of applications dated 6.2.2026 and 4.6.2026 before milimani mcelce430/2025 between Mohаmed Abdullahi Osman(Plaintiff) vs Omar Hassan Osman& 2 Others(Defendants) and interested party for hearing and determination it will be unfair for this court to invoke its inherent discretion in accord with section 3 of the Environment and land Court Act, 2011 and 3A of Civil Procedure Act 2010 to restrain the Trial Magistrate from discharging the core mandate of conducting its proceedings in Milimani Mcelc No E430 of 2025 between **Mohаmed Abdullahi Osman(Plaintiff) vs Omar Hassan Osman& 2 Others(Defendants) and interested party** to conclusion inclusive of delivering a ruling in regard to the application dated 4.6.2026. In the circumstances I find the application dated 10.6.2026 as prematurely placed before this court for hearing and determination hence an abuse of due process of the court. 37.It is trite that the corner stone for grant of stay of execution pending hearing and determination of appeal is proof of substantial loss to be suffered by Applicant/Aggrieved party if stay of execution order is not granted pursuant to order 42 rule 6 of the civil procedure rules 2010 and as restated in the case of **James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR)** as follows “**The issue of substantial loss is the cornerstone of both jurisdictions. substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”** 38.The Appellant /Applicant averred that He would suffer substantial loss by virtue of issuance of notice of eviction letter dated 9th June 2026 written by the 1st Respondent’s Advocates calling upon him to vacate the suit premise within 3 days from 9.6.2026 having been occasioned by issuance of exparte stay orders dated 5.6. 2026. 39. The 1st Respondent in his Replying Affidavit dated 29.7.2026 expressly denied issuing an eviction order or orders adverse to occupation of the suit premises by Applicant/Appellant. To date the Applicant/Appellant is in occupation of the suit premise. The Applicant has not demonstrated any eviction process as provided for in law having been commenced against him by the 1st Respondent to prejudice his occupation of the suit premise pending hearing and determination of appeal hence find that no substantial loss has been established by the Applicant to warrant granting stay of execution pending hearing and determination of the Appeal. 40.The Court of Appeal in the case of **Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others [2013] KECA 378 (KLR)** **held that** **“Whether an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversable or if it is not reversable damages will be reasonable compensation to the aggrieved party”.** 41.In this matter applications dated 6.2.2026 and 4.6.2026 so to main suit regarding tenancy/occupation of the suit property by Applicant are pending hearing and determination at milimani mcelce430/2025 between **Mohаmed Abdullahi Osman (Plaintiff) vs Omar Hassan Osman& 2 Others (Defendants) and interested party.** Apart from the notice to vacate the suit premise, no eviction process has been commenced in accordance with an order issued by a court of law against the Applicant by 1st Respondent hence find no circumstance(s) rendering the appeal nugatory if stay of execution is not granted pending hearing and determination of appeal. 42.As to whether Applicant/Appellant is entitled to the reliefs sought , having found that the Applicant/Appellant failed to establish the substantial loss and prejudice likely to be suffered if the proceedings before the trial court in particular delivery of the ruling pertaining application dated 4.6.2026 that will determine the fate of the exparte stay order issued on 5.6.2026 is not stayed and that the appeal shall be rendered nugatory if stay of execution orders are not granted pending hearing and determination of the appeal, I find the Applicant/Appellant is not entitled to the reliefs sought hence the application is hereby dismissed for not being meritorious. 43.As to the questions of costs in this matter, the Supreme Court in the case of in **Rai & 3 others Vs Rai & 4 others [2014] KESC 31 (KLR)** settled the law on award of costs being costs follow the event and Court has the discretion in awarding costs. Considering the contractual relations between Applicant and 1st Respondent I order that each party to bear own costs of the Application. **Final Orders:** a) The Application dated 10.6.2026 is dismissed with each party to bear own costs of Application. **DATED, SIGNED AND DELIVERED ON 14THDAY OF AUGUST,2026 VIRTUALLY AT VOI** **BY J. A. ORWA** **JUDGE** **IN THE PRESENCE OF:** **MS ASKA FOR THE APPLICANT /APPELLANT** **MR LETISIA –COURT ASSISTANT** **BUT ABSENCE OF MS KINYUA FOR THE 1ST RESPONDENT**