https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4825

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT KILGORIS** **ELCA (L) NO. E004 OF 2024** **JOHN MOSIANTET SAENI……………………………………..……………..………1ST APPELLANT** **ODUPOI OLE SAENI…………………………….…………………………………...2ND APPELLANT** **VERSUS** **SAMWEL PARSOILAL SEME………………………………………………...……..1ST RESPONDENT** **LAND REGISTRAR TRANSMARA WEST SUB-COUNTY…………..…………….2ND RESPONDENT** **LAND ADJUDICATION AND SETTLEMENT OFFICER, KILGORIS………………3RD RESPONDENT** **THE ATTORNEY GENERAL………………………………………………..……….4TH RESPONDENT** **RULING** 1. Upon consideration of the application by way of the Notice of Motion dated 20th of April 2026 seeking 2. Spent 3. A stay of execution of the judgment dated 1st April 2025, the decree dated 8th of April 2025 and the Ruling delivered on 24th of July 2025 in respect of Bill of Costs dated 16.06.2025, 4. Stay of warrants of execution of warrants of attachment issued to Kerati Auctioneers dated 23rd March 2026. 5. Leave for the firm of Kiprono law Advocates to come on record for Applicant after judgment in place of Mireri and Co. Advocates. 6. Applicant be granted leave to object to taxation decision delivered in 24th of July 2025 out of time. 7. That the court be pleased the Applicant leave to Appeal out of time against the judgment dated 1st of April 2025, 8. The grounds in support of the application being interalia that; - 9. Warrants of attachment of movable property issued on 23.03.2026 for recovery of Kshs.802,261 in execution by the court to Kerati Auctioneers, as a result of which 20 cows were proclaimed, but the warrants were erroneous in terms of description of the Respondents as judgment debtors. 10. No taxation notice was issued before taxation was done, hence the proclamation was illegal. 11. That the Bill of costs was taxed excessively high and over exaggeration. That the judgment was entered erroneously by misapprehension of the facts and the law, and the Applicant has an arguable Appeal. 12. That it is fair that the Applicant be allowed to challenge the Bill of costs, otherwise the Applicant would suffer great prejudice. 13. Upon consideration of the Replying affidavit of John Mosiantet Saeni filed opposition to the application in which he deposed that each prayer sought in the application was governed by a distinct legal principle and could not properly be collapsed int a single omnibus application without proper legal basis. 14. That the applicant failed to demonstrate substantial loss, has not offered any security for performance of decree and the application does not meet the threshold of stay of execution. 15. That the application is incompetent for failure to comply with order 9 Rule 9 of the Civil Procedure Rules. 16. That the Bill of costs had been duly served upon the previous advocates and the Applicant did not file a reference timely and a ruling and certificate of costs thus issued. 17. The Respondent exhibited an authority to cut, an affidavit of service, a taxation notice an email on the taxation notice, an email on the Bill of costs, a Notice of Appeal dated 13.11.2025 and a Ruling from the Court of Appeal dated 14.01.2026 striking out the Notice of Appeal. 18. Upon consideration of the oral submissions of the counsels in which Mr. Kiprono learned counsel submitted and conceded that the Notice of Appeal previously filed had been struck out and he abandoned the prayer for leave to Appeal out of time, and in which Mr. Miruka learned counsel for the Respondent submitted that the application was not merited and urged the court to dismiss the same. **Issues for Determination** 1. The court frames the following as issues for determination 2. Whether the application is merited. 3. What reliefs ought to issue and 4. Who bears the costs of the application. 5. On issue No. 1, the Respondent has exhibited a Ruling from the Court of Appeal in which the Notice of Appeal previously filed was struck out, and the counsel for the Applicant equally has abandoned the prayer for leave to extend time, thus there is no appeal that is pending before the Court of Appeal, the question arising is whether a stay of execution orders as sought by the Applicant can issue in the absent of Appeal filed before the Cour to Appeal. 6. A similar issue was considered in the decision in the case of Issa Shekue Shalli Vs. Buscar Ltd (2019) KELLRC 1874 KLR where Rika J. observed as follows; - ***“whereas it is not in the jurisdiction of the trial court to rule on the formal validity of a Notice of Appeal, there is merit in the claimant’s position that the Notice of Appeal was filed outside time allowed by the Court of Appeal Rules, and was served upon the claimant out of time; it is difficult in the circumstances to agree with the Respondent, that there is a valid Notice of Appeal, and therefore there is an intended Appeal, capable of prompting the court to go into considering grant of stay of execution.”*** 1. The above reasoning also resonates with the reasoning by the Supreme Court in its decision in the case of Dr. Wilfrida Arnolda Holondo Vs. Attorney General and 9 Others (2021) eKLR where the Supreme Court determined that an Appeal must exist before stay of execution could be considered. 2. Turning to the present application there is no Appeal that exists and the prayer for leave to Appeal out of time has equally been abandoned. It follows therefore that the prayers for stay of execution cannot be considered and the application therefore lacks merit. 3. On the issue for extension of time to file a reference, against the ruling on the taxation the Respondent has exhibited in his affidavit emails forwarding the taxation Notice as well as the Bill of costs and the Applicant has not stated the reasons for the delay in seeking extension of time, the court finds that the prayer for extension of time to file a reference out of time does not meet the threshold set out in Leo Silla Mutiso Vs. Rose Hellen Wangari, on the principles of extension of time. 4. Thus, in answer to issue No. 1 the court finds that the application lacks merit, having not met the threshold for grant of stay of execution and/or extension of time to file a reference. 5. In answer to issue No. 2, the court having found the application is not merited, disallows the same; with costs to the Respondents. Dated at Kilgoris this 27th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA – Sylvia/Gilbert Mr. Lenkai h/b for Mr. Miruka for Respondent N/A for Mr. Kiprono for the Applicant