Fwamba v Musungu & another (Environment and Land Appeal E012 of 2026) [2026] KEELC 4295 (KLR) (30 June 2026) (Ruling)

Fwamba v Musungu & another (Environment and Land Appeal E012 of 2026) [2026] KEELC 4295 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 4295 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Appeal E012 of 2026 AK Bor, J June 30, 2026 Between Paul Kuto Fwamba Appellant and Kevin Kituyi Musungu 1st Respondent Teina Nalika Watata 2nd Respondent Ruling 1.The Apellant brought the application dated 7/4/2026 seeking stay of execution of the decree and judgment delivered on 25/3/2026 in Kimilili SPM ELC Case No. E004 of 2020 pending hearing and determination of the appeal. The application was made on grounds that the Learned Magistrate ordered the opening of roads including road A, which was not in dispute. The Apellant contended that the trial court’s decision would irreversibly alter the land boundaries and that he would suffer substantial loss including loss of land and destruction of developments if the decree is executed. 2.The Apellant swore the supporting affidavit where he deponed that the trial court relied on an erroneous survey report, ignored his evidence and introduced road A, which was not part of the dispute. He argued that unless stay was granted, his land known as Bokoli/Mukuyuni/1073 would be interfered with and an illegal road may be created within his land. The Apellant annexed a copy of the judgment delivered by the trial court and the memorandum of appeal. 3.The issue for determination is whether the court should halt execution of the decree emanating from the decision of the Learned Magistrate. To be granted stay, an applicant must demonstrate that they stand to suffer substantial loss unless stay is granted, that the application was timeously made and the applicant offers security for the performance of the decree in the event the appeal fails. 4.The Apellant merely mentioned in his application that execution of the trial court’s decree would cause him irreparable loss and damage without giving particulars of the substantial loss he was likely to suffer. He did not demonstrate that the developments, which he claimed would be destroyed, were on the part of the land on which the road is to be opened. He did not also show how the loss of land would occur. If the Apellant succeeds on appeal after the road is opened, the appellate court can order closure of the road once the appeal is determined in favour of the Apellant and the land taken by the road would revert to the Apellant. 5.The court declines to grant the orders sought in the application dated 7/4/2026. DELIVERED VIRTUALLY AT BUNGOMA THIS 30TH DAY OF JUNE 2026.K. BORJUDGEIn the presence of: -Mr. Paul Kuto Fwamba- the ApellantCourt Assistants-Bett & MetrineNo appearance for the Respondent