https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3558

Ekiru v Chepchirchir (Suing as the legal representative of the Estate o Christopher Koech Tirieto - Deceased) (Land Case Appeal E024 of 2024) [2026] KEELC 3558 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3558 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Land Case Appeal E024 of 2024 LN Mbugua, J June 10, 2026 Between Paul Wanyama Ekiru Appellant and Esther Chepchirchir (Suing as the legal representative of the Estate o Christopher Koech Tirieto - Deceased) Respondent Ruling 1.Before me is a notice of motion application dated 23.3.2026 where the appellant is seeking an order of stay of execution of the taxation costs dated 14.8.2025 pending the hearing and determination of the appeal in Nyeri Civil Case no. E163 OF 2025 and the application filed in the same court in Civil Application no. E110 of 2025. 2.The application is premised on grounds on the face of the application and the affidavit of the applicant. He avers that the respondent has issued him with a notice to vacate the suit premises by 11.6.2026, yet there is a pending appeal. He avers that it is prudent to maintain status quo pending the hearing and determination of the appeal and on the same breadth, the taxation of the bill of costs should not proceed. 3.In opposition thereof, the respondent filed a replying affidavit dated 21.4.2026 where it is argued that the application is an abuse of the court process as the appellant has lodged a substantive appeal as well as an application at the Court of Appeal, adding that taxation cannot be stayed on account of a pending appeal. It is also argued that the application has been filed late in the day and that the applicant has not demonstrated that he stands to suffer substantial loss. 4.The Judgment before this court was delivered on 23.7.2025, of which the appellant has since lodged an appeal as well as an application for stay of the said judgment before the Court of Appeal in Nyeri. The respondent has filed a bill of costs dated 14.8.2025 and desires to prosecute the same. The issue falling for determination is whether a stay of taxation of the bill of costs is merited. 5.In the case of Selestica Limited v Gold Rock Development Ltd [2015], the court stated that;“Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The power to grant an application for stay of execution pending appeal is a discretionary one on sufficient cause being shown, where the applicant may suffer substantial loss; the application is made without unreasonable delay and on provision of such security as the Court may impose.” 6.The applicant has not demonstrated the nature and extent of the substantial loss that he stands to suffer if the bill of costs is taxed. Further, the application at hand was filed several months after the bill of costs was filed and the delay has not been explained. Of great importance is the fact that the applicant has filed an application for stay of execution at the Court of Appeal in Civil Application No. E110 of 2025; it is noted that taxation is part and parcel of the execution proceedings. It follows that the filing of the current application when there is another application at the Court of Appeal amounts to an abuse of the court processes. 7.In the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR, the court had this to say in regard to abuse of court processes;“Abuse of court process created a factual scenario where a party was pursuing the same matter by two court process. A party by the two court process was involved in some gamble, a game of chance to get the best in the judicial process. A litigant had no right to purse paripasua two processes, which would have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both.Litigation was not a game of chess where players outsmarted themselves by dexterity of purpose and traps”. 8.This far, I come to the conclusion that the application dated 23.3.2026 is not merited, the same is hereby dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 10TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:C/A – Nancy MwangiAppellant present in personRespondent – Lesikito h/b for Ngetich