https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3719

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT NAKURU** **ELCA NO. 4 OF 2023** **PAMELA CHEPCHUMBA** **RECHENBACH……………………………………...……....…APPELLANT** **VERSUS** **STANLEY KIPRUTO BOMET……………………..…1ST RESPONDENT** **FRANCIS KITUYO…..…………………...……..…….2ND RESPONDENT** **NAKURU LAND REGISTRAR……..………………...3RD RESPONDENT** **RULING** 1. This ruling is in respect of the application dated 17th December, 2025 by the Appellant seeking the following orders: 2. **Spent.** 3. **Spent.** 4. **THAT pending the hearing and determination of the Appeal on merit, the honorable court be pleased to issue an order of stay of execution against the judgment of the court as delivered on 27th January, 2023 by Hon. J.B. Kalo.** 5. **THAT pending the hearing and determination of the Appeal, the honourble court be pleased to issue an order of injunction against the Respondents and their agents, servants and/or anybody claiming under them from entering, remaining, occupying, trespassing, disposing off, transferring, leasing, charging and/or otherwise dealing with the parcel of land known as MITI MINGI MBARUK BLOCK 3/786 (BARUT).** 6. **THAT costs of this application be in the cause of the main suit.** 7. The application is grounded on the supporting affidavit of Pamela Chepchumba Rechenbach the Appellant who deponed that judgment was delivered on 27th January, 2023 in favour of the Respondent. 8. She deponed that an application for stay was made and the same was dismissed on 2nd December, 2025 on the basis that the said application ought to have been made on appeal. 9. She further deponed that the delay of 2 ½ years in delivery of the ruling resulted from the disappearance of the file to the extent that a skeleton file was constructed. 10. The Appellant also deponed that claim on land cannot be brought forth after the lapse of 12 years from when the 1st Respondent’s claim arose yet he has been in occupation for over 20 years. 11. She deponed that the trial court erred when it failed to appreciate that her sale agreement had gotten lost during the election. She added that she did not have the apprehension that the 1st Respondent might attempt to defraud her the property. 12. She further deponed that if stay of execution is not granted, the appeal shall be rendered redundant and she will suffer substantial loss and damages. 13. In conclusion, she urged the court that it was in the interest of justice that the application be allowed as prayed. **RESPONSE** 1. The 1st Respondent filed his replying affidavit sworn on 2nd March, 2026 where he averred that judgment was delivered in his favor on 27th January, 2023 declaring him the legal owner of the suit parcel. 2. He further averred that the court ordered cancellation of the title deed that had been issued to the Applicant and a mandatory injunction that ordered the Defendants to vacate the suit land. 3. He averred that the Appellant failed to meet the necessary legal prerequisites for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules as failed to demonstrate what substantial loss she would suffer if the stay is not granted. He points out that she is not currently on the disputed land. 4. He also averred that granting a stay would cause him substantial loss, as it would postpone his ability to enjoy the fruits of a judgment for land he has been denied access to for decades despite being the legal owner. 5. He further averred that the impugned judgment constituted a negative order incapable of forming the basis of a stay of proceedings. 6. The 1st Respondent averred that the Appellant failed to satisfy the required pre-conditions for the court to exercise its discretion. He urged the court to dismiss the application with costs for being fundamentally defective. **APPELLANT’S SUBMISSIONS** 1. Counsel for the Appellant identified two issues for determination whether the Appellant met the threshold for stay of execution pending appeal and costs of the application. 2. On the first issue, he relied on **Order 42 Rule 6 of the Civil Procedure Rules** and the case of **Indoken Limited V Ndivo (Suing as Personal representatives of the estate of Jonathan Muema Katuma [2026] KEHC 3384 (KLR)** that set out the requirements for grant of stay. 3. On the condition of delay, he submitted that the application was filed without unreasonable delay, having been filed on 17th December, 2025. He relied on the case of **Andrew Kiplagat Chemaringo V Paul Kipkorir Kibet [2018] KECA 701 (KLR)**. 4. On substantial loss, it was his submission that execution of the judgment would result in insurmountable loss since as their ownership rights over the property would be extinguished and transferred to the Respondent. He cited the case of **Joseph Simiyu Mukenya V Agnes Naliaka Cheseto 42 of 2011 (eKLR)**and**Charles Kariuki Njuri V Francis Kimaru Rwara [2020] KEELC 1122 (KLR)** 5. He also submitted that the Appellant was willing to provide security for the due performance of the decree. He relied on the case of **Beatrice Ngonyo Ndungu & Another V Samuel K. Kanyoro & 2 Others [2018] KEELC 360 (KLR** 6. On the final issue of costs, He cited **Section 27 of the Civil Procedure Act** and submitted that the Appellant’s application is merited and submitted that costs of the application should be borne by the Respondents. **RESPONDENTS SUBMISSIONS** 1. Counsel for the Respondent identified two issues for determination, whether this court can issue stay of execution orders against declaratory and injunctive orders and whether the application has satisfied the principles for granting stay of execution orders. 2. On the first issue, it was his submission that the impugned judgment delivered on 27th January, 2023 contained negative orders of declaratory nature incapable of forming a basis of stay of proceedings. He cited the case of **Johana Nyokwonyo Buti V Walter Rasugu Omariba & 2 Others (2011) eKLR** and **Kaushik Panchamatia & 3 Others V Prime Bank Limited & Another [2020] eKLR.** 3. He submitted that the Applicant cannot ask for a stay of the Courts Order as the order is of a negative nature incapable of execution. He added that the Applicant was not in occupation of the suit land since 2016 as admitted in paragraph 5 of the annexed memorandum of appeal. 4. On the second issue, he submitted that Applicant generalized that she will suffer substantial loss without specifics. He submitted that the mere fact that the Applicant was apprehensive that the Respondent might start the process for execution of the judgement does not automatically amount to substantial loss without proof of such loss. 5. He cited the case of **Carter & Sons Ltd. V. Deposit Protection Fund Board & Two Others – Civil Appeal No. 291 Of 1997** and **James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR.** 6. He also submitted that application was made almost three years after the judgment was delivered for the reason that the Applicant filed the application in the wrong court. **ANALYSIS AND DETERMINATION** 1. The main issue for determination is whether the application is merited. 2. In the preliminary, it is not in dispute that the trial court delivered its judgment on 27th January, 2023 in favour of the Respondent. In the said judgment, the court issued a declaration that the Plaintiff was the legal owner of the suit parcel. It is also not in dispute that the court also issued a mandatory injunction compelling the Defendants to vacate the suit parcel. 3. In the case of **Katiba Institute V President of Republic of Kenya & 2 Others; Judicial Service Commission & 3 others (Interested Parties) (2020) eKLR**, the court held as follows: **“First: (i) Executory judgment declares the respective rights of the parties and then proceeds to order the defendant to act in a particular way, e.g. to pay damages or refrain from interfering with the plaintiffs' rights, such order being enforceable by execution if disobeyed.** **Declaratory judgments, on the other hand, merely proclaim the existence of a legal relationship and do not contain any order which may be enforced against the defendant.** **Second: A declaratory judgment may be the ground of subsequent proceedings in which the right, having been violated, receives enforcement but in the meantime, there is no enforcement nor any claim to it’.”** 1. It is this court’s view while in agreement with the Respondent that a declaratory order contains no provision for enforcement against the person it is issued thus incapable of being stayed, the impugned judgment contained both declaratory orders and executory orders. 2. It is not in dispute that the trial court aside from declaring that the Plaintiff was the lawful owner of the suit parcel, it went further and ordered the Defendants to vacate the suit parcel. 3. It is my opinion that the same did not amount to a negative order and therefore this court shall proceed to determine the issue of stay of execution. 4. **Order 42 Rule 6 (1)(2) of the Civil Procedure Rules** provides as follows; **“(2) No order for stay of execution shall be made under sub rule (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. In **RWW V EKW [2019] eKLR** the court held as follows: **“...the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”** 1. For this court to grant an order of stay of execution, the Appellant must demonstrate that she filed the application under consideration without unreasonable delay, that she will suffer substantial loss if the orders sought are not granted and that she is willing to deposit security for costs. It is also noteworthy that the court should endeavor to balance the interests of both the successful party in litigation so as not to unnecessarily bar them from enjoying the fruits of judgment and that of the Appellant whose appeal may succeed and be rendered nugatory if stay of execution is not granted. 2. On the issue of delay, a perusal of the court record shows that judgement in the matter was delivered on 27th January, 2023 while the present application was filed on 17th December, 2025 translating to a period of about 3 years from the date of judgment. 3. It was the Appellant’s case that the delay was caused by the lost file resulting in delayed delivery of ruling by the trial court, however, the same was not substantiated. This court is of the view that that the period amounts to inordinate delay. 4. The Appellant has to also demonstrate that unless the court grants stay of execution orders pending appeal, he stands to suffer substantial loss. The Appellant argues that if the stay orders, are not granted, the suit property was as risk of being sub-divided and disposed. The Respondent on the other hand contends that the Appellant was not on the suit parcel to warrant substantial loss as she vacated in 2016. 5. It is this court’s view that since it is not in dispute that the Appellant is not in possession of the suit property, she has failed to demonstrate the substantial loss she would suffer if stay is not granted. 6. In the case of **Christopher Ndolo Mutuku & Another V CFC Stanbic Bank Ltd (2015) eKLR**, the Court observed that; **“…what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…”** 1. Further, in the case of **Siegfried Busch V MCSK [2013] eKLR**, the court held as follows: **“A superior court to which an application has been made must recognize and acknowledge the possibility that its decision for refusal to grant a stay of execution could be reversed on appeal. It would be best in those circumstances to preserve the status quo so as not to render an appeal nugatory. Even in doing so, the court should weigh this against the success of a litigant who should not be deprived of the fruits of his judgment...”** 1. This court is of the view that grant of stay remains a discretionary order that must consider the fact that the court ought not to make a practice of denying a successful litigant the fruits of their judgment. 2. It is this court’s view that the circumstances in the instant case do not present any justification to warrant this court exercise its discretion to stay the proceedings in the subordinate court. 3. This court is under a duty to dispense justice to both parties and if an application is meant to delay the wheels of justice then the court must put a stop to it. It is my opinion that the Appellant has not established that the appeal will be rendered nugatory if the stay of execution is not granted. 4. The Appellant also sought for temporary injunction pending appeal. The law on temporary injunctions pending appeal is found under **Order 42 rule 6 (6) Civil Procedure Rules**, 2010, which provides as follows: **"Notwithstanding anything contained in sub-rule (1) of this Rule the High Court shall have powers in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with’’.** 1. In the case of **Patricia Njeri & 3 Others V National Museum of Kenya [2004] KEHC 1614 (KLR)** held that: 2. **An order of injunction pending appeal is a discretionary matter which will be exercised against an applicant whose appeal is frivolous.** 3. **The discretion should be refused where it would inflict great hardship than it would avoid** 4. **The applicant must show that to refuse the injunction would render the appeal nugatory** 5. **The court should also be guided by the principles in Giella V Cassman Brown & Co Ltd.”** 6. In the instant case, it is not in dispute that the Appellant filed a Memorandum of Appeal dated 23rd February, 2023 against the ruling of the trial court in Nakuru CMC ELC 378 of 2018 delivered on 27th January, 2023. 7. It is also not in dispute that the Appellant faulted the trial court for finding that the Respondent was the lawful owner of the suit parcel in disregard of the Certificate of Title issued to the Appellant. 8. For an Applicant to be successful in being granted temporary injunction orders, he/she has to satisfy the three conditions stipulated in the case of **Giella V Cassman Brown & Co Ltd 1973 EA 358**, these are prima facie case, irreparable harm and balance of convenience. 9. Further, in the case of **Kenya Commercial Bank Limited V Nicholas Ombija [2009] KECA 228 (KLR)** the court held that: **“…an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.”** 1. As guided by the above authorities, it is this court’s view that the grant of temporary injunction cannot apply in the present case since it is not in contention that the Appellant already vacated the suit parcel. 2. It is my opinion that the prayer for temporary injunction at this stage is in fact overtaken by events and this court shall not belabor on the same. 3. In view of the foregoing, it is this court’s view that the Appellant has not demonstrated that she entitled to an injunction pending the hearing and determination of the appeal. 4. Consequently, the application dated 17th December,2025 is hereby dismissed with costs to the 1st Respondent. **Ruling dated, signed and delivered virtually at Nakuru this 18th day of June 2026.** **L KOMINGOI** **JUDGE** **In presence of: -** Mr. Kibet for the Appellant Ms. Achieng for the 1st Respondent No appearance for the 2nd and 3rd Respondent Court Assistant: Derrick/Irene