Pertet v Ngotiek & another (Being sued as legal representatives of Joseph Ngotiek) & 5 others (Environment and Land Case 744 of 2017) [2026] KEELC 3427 (KLR) (28 May 2026) (Ruling)

Pertet v Ngotiek & another (Being sued as legal representatives of Joseph Ngotiek) & 5 others (Environment and Land Case 744 of 2017) [2026] KEELC 3427 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3427 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case 744 of 2017 J Omange, J May 28, 2026 Between Peninah Nasieku Pertet Plaintiff and Phyllis Seleina Ngotiek & Richard ole Munyaany (Being Sued As Legal Representatives Of Joseph Ngotiek) 1st Defendant Joseph Mugo 2nd Defendant David Shanga 3rd Defendant District Land Surveyor Kajiado 4th Defendant District Land Registrar Kajiado 5th Defendant The Hon Attorney General 6th Defendant Ruling 1.Before this Court for determination is the Notice of Motion dated 4th February 2026 wherein the Applicant seeks an order for stay of execution and enforcement of the Judgment, Decree and all consequential orders issued by this Court on 4th December 2025 pending the hearing and determination of the Appeal lodged before the Court of Appeal. 2.The Application is premised on the grounds on its face and in the supporting affidavit sworn by the Applicant. The Applicant states that being dissatisfied with the Judgment of this Court, he lodged an Appeal before the Court of Appeal on 10th December 2025 within the prescribed timelines and has since filed both the Memorandum and Record of Appeal. He avers that the appeal raises arguable grounds with overwhelming chances of success and that unless stay is granted, execution is imminent since the interim stay of forty five (45) days granted by this Court has already lapsed. 3.The Applicant further contends that execution of the decree would occasion substantial loss and render the intended appeal nugatory. He states that it is in the interests of justice that the subject matter be preserved pending the hearing and determination of the appeal and maintains that the Respondent shall suffer no prejudice incapable of compensation by costs. 4.The Application is opposed vide the Respondent’s Replying Affidavit. The Respondent argues that the Application is incompetent, brought in bad faith and intended to delay enjoyment of the fruits of judgment delivered on 4th December 2025. She contends that the Applicant has failed to demonstrate substantial loss as required by Order 42 Rule 6 of the Civil Procedure Rules and has equally failed to offer security for the due performance of the decree. 5.The Respondent further denies any intention to dispose of the suit property and instead accuses the Applicant of frustrating her quiet enjoyment of the same in disregard of the Court’s Judgment. She asserts that the filing of an appeal does not operate as an automatic stay of execution and urges the Court to dismiss the Application with costs. 6.This application was canvassed by way of written submissions. 7.Relying on Order 42 Rule 6(2) of the Civil Procedure Rules and the decision in Butt v Rent Restriction Tribunal Counsel for the Applicant submitted that Court ought to exercise discretion in a manner that does not render an appeal nugatory. On substantial loss, it was submitted that if execution proceeds, the Respondent could interfere with the suit property or evict the Applicant, fundamentally altering the substratum of the appeal. Reliance was placed on In re Estate of Kakua Kioko (Deceased) and Mukuma v Abuoga, where the court held that substantial loss is prevented by preserving the status quo so as not to render an appeal nugatory. The Applicant further argued that the intended appeal was arguable as it raises bona fide issues deserving consideration by the appellate court, relying on Stanley Kang’ethe Kinyanjui v Tony Ketter & Others. It is therefore urged that the balance of convenience is in favour of preservation of the suit property pending hearing and determination of the appeal. 8.Counsel for the Respondent opposed the Application for stay of execution submitting that the Applicant has failed to satisfy the mandatory requirements under Order 42 Rule 6 of the Civil Procedure Rules. Counsel argued that the Applicant has not demonstrated any substantial loss, contending that the allegations of possible disposal of the suit property are speculative and unsupported by evidence. It is further submitted that the decree merely related to rectification of the Registry Index Map (RIM), which was reversible should the appeal succeed, and that granting stay would unjustly deny the Plaintiff the fruits of her judgment. Reliance was placed on Kenya Shell Limited v Benjamin Karuga Kibiru & another, Machira t/a Machira & Co Advocates v East African Standard and James Wangalwa & another v Agnes Naliaka Cheseto. 9.The Respondent further submitted that the Applicant had failed to provide security for due performance of the decree as required under Order 42 Rule 6(2)(b), rendering the Application fatally defective. Counsel also argues that the Applicant has improperly invoked the nugatory test, which applies before the Court of Appeal and not this Court. Lastly, it is submitted that the Application has been brought in bad faith to delay execution and deprive the Plaintiff of the fruits of the Judgment. 10.Having considered the Application and rival arguments, the Court finds that the sole issue for determination is whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal. 11.The applicable law for Stay pending Appeal is Order 42 Rule 6 of the Civil Procedure Rules which provides:(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from…(2)No order for stay of execution shall be made under subrule (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. 12.The grant of an order of stay of execution is, however, a matter of judicial discretion, to be exercised judiciously upon consideration of the facts and circumstances of each case. This was settled in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal held that:“… It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution…” 13.On whether substantial loss has been demonstrated, the Court is alive to the fact that substantial loss is the cornerstone of an application for stay pending appeal in the Environment and Land Court. The Applicant has expressed apprehension that execution of the decree would alter the substratum of the dispute and render the pending appeal nugatory. The Respondent on the other hand maintains that she merely seeks to enjoy the fruits of her judgment. 14.While it is true that a successful litigant is entitled to enjoy the fruits of Judgment, land is an emotive issue in Kenya as has been continuously noted by Courts. As such, the Court has a duty to safeguard both parties’ rights and statutory right of appeal. In Butt vs Rent Restriction Tribunal, the Court went on to hold that:“… If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory…” 15.As such, the justice of this matter lies in preserving the subject matter pending the hearing and determination of the appeal while at the same time securing the Respondent’s interests. 16.On the issue of security, although the Applicant did not propose specific security in the Application, the Court retains discretion to impose appropriate terms under Order 42 Rule 6(2)(b). In balancing the competing interests of the parties, the Court finds it just to order provision of security as a condition for stay. 17.Consequently, the Notice of Motion dated 4th February 2026 is hereby allowed on the following terms:i.There shall be a stay of execution and enforcement of the Judgment, Decree and all consequential orders issued on 4th December 2025 pending the hearing and determination of the Appeal at the Court of Appeal.ii.The Applicant shall deposit security in the sum of Kshs 1000000 n a joint interest earning account in the names of counsel for the parties within forty five days from the date hereof, failing which the stay herein shall automatically lapse. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF MAY 2026.JUDY OMANGEJUDGE.In the Presence:Ms. Gichuki for the Plaintiff/Respondent.Ms. Okumu for Nyangito for the 1st Defendant.Peter – Court Assistant.