https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4079

Nyukul v Sunkul (Environment and Land Appeal E004 of 2026) [2026] KEELC 4079 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4079 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Appeal E004 of 2026 MN Mwanyale, J July 2, 2026 Between Samuel Lepita Nyukul Appellant and Moses Ledama Sunkul Respondent Ruling 1.Coming up for determination is the Application by way of Notice of Motion dated 12th of March 2026, seeking stay of execution against the decree issued in Kilgoris MCELC 45/2019 issued on 23rd February 2026 pending hearing and determination of the Appeal. 2.The Application is supported by supporting affidavit of the Applicant Samuel Lepita Nyukul who deposes interalia thati.Kilgoris MCELC No. 45/2019 was heard and determined on 16.05.2025 and an Appeal against the decision was filed on 12.06.2025, having applied and paid for the proceedings on 17th May 2025; which certified proceedings and judgment have not been supplied to him.ii.That the Respondent had acknowledged that the Applicants 2 acres had been wrongfully Amalgated into his parcel and promised to settle the Applicant on another parcel within the same acres, and if the decree is executed the Applicant would be displaced in a property that he has developed extensively.iii.The Application was opposed by the Replying affidavit of the Respondent, Moses Ledama Sunkuli, in which he confirmed delivery of judgment and issuance of decree in the lower court.iv.That the execution relates to issue of recovery of costs of the suit which the auctioneer had proclaimed at his home; pursuant to a certificate of costs of Kshs.642,325 together with Auctioneers costs of Kshs.82,131, hence security for costs ought to be deposited.v.That the Applicant has hidden the proclaimed goods, so as to defeat the recovery of costs. That the Appeal has no chance of success; and the Applicant ought to deposit Kshs.1000,000 as security for grant of stay of execution.vi.That the Application was filed after an inordinate delay since the judgment was delivered on 16.05.2025 and application filed 10 months after.vii.That the Appellant has no valid Appeal since the Appeal was filed before the High court as opposed to this court. 3.The Application proceeded by way of written submissions. Applicant’s Submissions 4.Applicant framed and submitted on 4 issues for determination.i)Firstly, submitting on the applicable law on being order 42 Rule 6(2) of the Civil Procedure Rules and submits that the Appeal raises arguable and substantial issues.Ii)The Applicant has demonstrated substantial loss as his goods and animals shall be proclaimed yet the taxation was conducted without service of the taxation Notice to him, hence the Bill of costs proceeded exparte.iii)The Applicant submits filing the Application expeditiously and without delay, once the execution process was set in motion.ivThe Applicant submits that he is ready to furnish security and urges the court to allow the Application. Respondents Submissions 5.The Respondent framed and submitted on 5 issues for determination.i)On issue 1, the Respondents submits that the conditions for grant of stay of execution under order 42 Rule 6 of the Civil Procedure Rules have not been met, in that there was delay in filing of the Application as well as no deposition on furnishing of security.ii)The Respondent submits that the court should not aid a party that deliberately acts in bad faith and obstructs execution process.iii)The Respondent submits that the Appeal is incompetent and not arguable. Incompetent as it was filed before the wrong court and that het Appeal is not merited. Issues for Determination 6.The issues for determination arising from the application are;i.Whether or not there is a competent Appeal.ii.Whether the Application is merited.iii.What reliefs ought to issue.iv.Who bears the costs of the application. Analysis and Determination 7.Order 42 Rule 6 of the Civil Procedure Rules sets out the conditions for grant of stay pending Appeal. The application herein shall be weighed against the said conditions. 8.On issue number 1, the Respondent submits that the Appeal herein is incompetent as it was filed before the High court and not before the ELC. 9.Indeed, the Memorandum of Appeal dated 12th of June 2025 was filed before the High court and not the ELC, but 18.03.2026, the High ourt (Kariuki J), transferred the suit to the ELC. 10.The suit having been transferred by a Judge of concurrent jurisdiction this court is unable to overrule the said transfer, and having being filed timeously on 12th of June 2025 against a decision delivered on 16th May 2025, the court thus deems the Appeal to be competent and answers issue No. 1 in the affirmative. 11.On issued number 2, was the Application filed timeously. 12.The Appeal herein was filed on 12th of June 2025, while the application for stay filed on 12th March 2026. The Respondent submits that there was an inordinate delay. 13.The Applicant submits that the application was filed timeously upon issuance of the decree on 23.02.2026, since there was a stay of execution that was already in place for 120 days after the delivery of the judgment. 14.The court finds that the application for stay of execution was filed after the Respondent commenced execution proceedings by extracting the decree on 13.02.2026, taxing the costs and the auctioneer making proclamation in respect of the taxed costs, and the Application was filed on 12.03.2026, about 1 month after issuance of the decree, hence the same was filed timeously. 15.The Applicant has not deponed on the issue of security but has submitted on the willingness to deposit such security as may be ordered for performance of the decree. 16.On substantial loss, the Applicant has deponed that if execution is to proceed then he will suffer substantial loss in terms of eviction from the property that he has extensively developed. 17.The issue of the intended Appeal being arguable and nugatory aspect, are not issues to be considered under order 42 Rule 6 but are issues to be considered in respect of a stay of execution Application under Rule 5(2) B of the Court of Appeal Rules and the court shall not dwell on them. 18.On a balance of probabilities, the court finds that the Applicant has made a case for stay of execution pending Appeal, in answer to issue number No. 1. 19.On what reliefs ought to issue, the court in allowing the application makes the following order.i.That the Applicant shall deposit in court as security for costs Kshs.400,000 within 28 days from today, failure to which the stay of execution order lapses.ii.The Applicant shall settle the auctioneer’s fees in full within the same period.iii.The Applicant to file and serve the Record of Appeal within 60 days from today.iv.Towards this end the proceedings to be typed within the next 45 days.v.Costs of the Application shall abide by the outcome of the Appeal.vi.Mention on 16.09.2026 to confirm filing of the Record of Appeal.vii.Orders accordingly. DATED AT KILGORIS THIS 2ND DAY OF JULY 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMr. Seriani for RespondentN/A for Applicant