https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3486

Kosen v Ole Kosen & another (Environment and Land Appeal 18 of 2019) [2026] KEELC 3486 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3486 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Appeal 18 of 2019 LN Gacheru, J June 4, 2026 Between Sarah Jepkorir Kosen Appellant and Melenta Ole Kosen 1st Respondent The Chairman, Land Dispute Tribunal, Central Narok Division 2nd Respondent Ruling 1.The matter for determination is the 1st and 2nd RespondentsApplicants’ Notice of Motion Application dated 18th December, 2025, wherein the said Applicants have sought for the following orders:-1.That this Honourable Court be pleased to extendenlarge the time limited for the 1st and 2nd RespondentsApplicants herein to file a Notice of Appeal against the Judgment and Decree of this Honourable Court delivered in this matter by Hon. Justice Mohamed Kullow on 9th October 2025.2.That the Notice of Appeal dated 17th November, 2025, and duly filed by the 1st and 2nd Respondents herein on 18th November 2025, be deemed to have been properly filed and served, though out of time.3.That the Requests for typed and certified copies of the Judgement delivered in this matter by Hon. Justice Mohamed Kullow on 9th October 2025, the Decree emanating thereof as well as Proceedings, expressed through the letters dated 17th November 2025 and filed by the 1st and 2nd Respondents herein on 18th November 2025, be deemed to have been properly filed and served, though out of time.4.That pending the hearing and determination of the 1st and 2nd Respondents intended Appeal to the Court of Appeal, this Honourable Court be pleased to grant an order of stay of execution of the Judgement and Decree delivered in this matter by Hon. Justice Mohamed Kullow on 9th October, 2025 and all consequential Orders arising therefrom. 2.The instant Application is anchored on the following grounds, which are set out on the face of the Application: -1.That judgement in this matter was delivered by the Hon. Justice Mohamed Kullow while sitting in the Environment and Land Court at Nairobi on 9th October 2025, in the absence of both parties.2.That the court records show that this matter last came up on 10th December, 2021, in the presence of Advocates for both parties, wherein Hon. Justice Mohamed Kullow indicated that he would deliver Judgement in the matter on Notice.3.That at no point was Notice issued to the 1st and 2nd Respondents andor on its Advocates on record concerning the delivery of the Judgement on the said date the same was delivered, that is 9th October 2025.4.That Counsels for the 1st and 2nd Respondents only became aware of the said Judgment by chance on 4th November 2025, when a member of their staff, Mr. Fredrick Nasoore Kipela, Advocate, stumbled upon it during a visit he had made to the Narok ELC Registry while on other assignments on the said 4th November 2025, about twenty-four (24) days after the delivery of the said Judgement.5.That the provisions of Rule 77 (2) of the Court of Appeal Rules, 2022, provide that a Notice of Appeal must be filed within fourteen (14) days after the date of the JudgementRuling against which an appeal is intended to be lodged.6.Therefore, by 4th November, 2025, when the 1st and 2nd Respondents became aware of the Judgement in this matter, by virtue of the said Rule 77 (2) of the Court of Appeal Rules, 2022, time of filing an appropriate Notice of Appeal had lapsed.7.However, upon procuring a copy of the said Judgement and having taken instructions from the 1st and 2nd Respondents, on 18th November, 2025, Counsels for the 1st and 2nd Respondents filed the Notice of Appeal dated 17th November, 2025. The necessary Requests to obtain typed and certified copies of the said Judgement, the Decree emanating therefrom as well as the proceedings were also duly made.8.That the said Notice of Appeal as well as the Requests of typed and certified copies of the said Judgement, the Decree emanating therefrom as well as the Proceedings were duly served on the Appellant's Counsel, Kiplenge, Andama & Makau Advocates, on 19th November 2025.9.The Appellant's Counsel duly acknowledged the said service but noted that it was doing so under protest on the basis that, the said filings of 18th November, 2025, were irregular as they were done without leave of Court.10.That for the reasons that the said Judgement was delivered without Notice and the circumstances which the 1st and 2nd Respondents found out about the said Judgement are clear and undisputed, and further that the Notice of Appeal was filed within fourteen (14) days from the date the 1st and 2nd Respondents became aware of the said Judgement, then they leave of this Court to not only extend the time limited by law for the filing of the said Notice of Appeal, but to also deem the said Notice of Appeal dated 17th {{^}} November 2025, as well as the afore-mentioned Requests as properly on record, the same having been filed within fourteen (14) days from the date the 1st and 2nd Respondents became aware of the said Judgement.11.That it is evident from the said Judgement,that the Court not onlycancelled the 1st Respondent's Title to the suit property, upheld the Appellant's title but also ordered that the 1st and 2nd Respondents to vacate the suit property within ninety (90) days, from the date of the said Judgement failing which they are to be evicted without any further Order from the Court.12.That the 1st and 2nd Respondents are reasonably apprehensive that unless the Directions and Orders sought in the instant Notice of Motion Application are granted, at the lapse of the ninety (90) days, that is on 9th January, 2026, they will be evicted from the suit property by the Appellant on the basis of the impugned Judgement of 9th October, 2025.13.Further, that the Court should note as is evident from the record that the 1st and 2nd Respondents have been in occupation of the suit property since 2007 to date.14.Therefore, in the interest of justice the Notice of Motion Application herewith should be allowed. 3.The instant Application is vehemently opposed by the AppellantRespondent herein, who filed her Grounds of Opposition and averred as follows;1.That having delivered its Judgment, this Honourable Court is functus officio in so far as the Applicants seek to extend the time within which to lodge a Notice of Appeal.2.That this Honourable Court lacks the jurisdiction to entertain the instant application for extension of time as the same lies exclusively with the Court of Appeal.3.That as regards the application for a stay of execution of the terms of the judgment in question, the same cannot be granted on the basis of speculation as there is no valid Notice of Appeal and consequently, no competent appeal exists.4.That moreover, the Judgment in this matter was delivered on the 9th October 2025, and therefore the last date permissible for filing a Notice of Appeal was on the 23rd October 2025, whereas the instant application was made on the 18th December, 2025 resulting in a delay of 56 Days which is inordinate in the circumstances.5.That though the Respondents Applicants herein admit to having become aware of the delivery of the said Judgment on the 4th November 2025, they did not take any action towards extending the time within which to appeal against the said decision thus indicating their indolence.6.That there is no justifiable explanation for the said delay and therefore the same is inexcusable thus disentitling the Respondents Applicants of this Court's discretion in so far as a stay of execution is concerned.7.That at the same time, the Respondents Applicants have failed to offer any security for costs, thus falling short of the legal threshold for a stay of execution of the said judgment.8.That the Application at hand is an abuse of court process, evidently brought in bad faith, against the interests of justice, lacks merit and is otherwise only ripe for dismissal with costs. 4.The Application was canvassed by way of written her written submissions, wherein the AppellantRespondent filed their written submissions dated 9th April, 2026, in opposition to the instant Application dated 18th December, 2025, and raised the following issues for determination: -a.Whether or not this Honourable Court has the necessary jurisdiction to extendenlarge the time within which the Applicants can file a Notice of Appeal against the judgment delivered on the 9th October 2025.b.Whether or not the Respondents Applicants have met the legal threshold for the grant of a stay of execution of the terms of the said judgment.c.Who should bear the costs? 5.On whether or not the Court has jurisdiction to extendenlarge the time within which the Respondents Applicants can file a Notice of Appeal against the judgment delivered on 9th October 2025, the AppellantRespondent submitted that the Court lacks jurisdiction to enlarge time for filing a Notice of Appeal against the judgment delivered on 9th October, 2025. She also submitted that jurisdiction is conferred only by the Constitution or statute, as affirmed in the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR. 6.Further, that under Rule 77(2) of the Court of Appeal Rules, 2022, a Notice of Appeal must be lodged within fourteen days of the impugned decision. Further, Rule 4 of the said Court of Appeal Rules vests the power to extend time exclusively to the Court of Appeal. Consequently, only the Court of Appeal can enlarge time for filing a Notice of Appeal. 7.Reliance was placed in the case of Equity Bank Ltd v West Link Mbo Ltd [2013] eKLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the courts affirmed that extension of time is a discretionary power exercisable only by the court vested with jurisdiction under the relevant rules. 8.The AppellantRespondent argued that the prayers seeking extension of time are incompetent and ought to be struck out, with costs to herself. 9.On Whether the Respondents Applicants have met the threshold for Stay of Execution, the AppellantRespondent submitted that a stay of execution is ancillary to a competent appeal or intended appeal, and cannot issue where there is no valid Notice of Appeal. 10.It was further argued that since the RespondentsApplicants failed to lodge a Notice of Appeal within the prescribed period, and have not obtained extension of time from the Court of Appeal, there is no competent appeal capable of supporting an order of stay. 11.For this argument, reliance was placed on the case of Equity Bank Ltd v West Link Mbo Ltd [2013] eKLR and Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, where the courts held that stay orders are intended to preserve the subject matter pending appeal and cannot be issue in a vacuum. 12.The Appellant Respondent further submitted that: the Judgment was delivered on 9th October 2025, while the instant application was filed on 18th December 2025, a delay of approximately 56 days. That even if the RespondentsApplicants only became aware of the judgment on 4th November 2025, as alleged, there still remains an unexplained delay of over one month. The explanation offered by the RespondentsApplicants is unsatisfactory and demonstrates indolence. 13.The AppellantRespondent relied on the case of Utalii Transport Company Ltd & 3 Others v NIC Bank Ltd & Another [2014] eKLR, for the principle that prolonged and inexcusable delay militates against the exercise of judicial discretion. 14.Further, that the Respondents Applicants have not demonstrated any substantial loss if stay is denied. The AppellantRespondent further argued that she has already substantially executed the judgment, save for the eviction of the 1st and 2nd RespondentsApplicants from a portion of the suit land. Consequently, there is no evidence that the intended appeal would be rendered nugatory. 15.The AppellantRespondent also submitted that the Respondents Applicants have failed to offer any security for the due performance of the decree as required under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. Reliance was placed in the case of Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018] eKLR, where the Court held that provision of security is a mandatory requirement for stay. 16.For the above reasons, the AppellantRespondent argued that the Respondents Applicants have failed to satisfy the conditions for grant of stay of execution. 17.On who should bear costs, the AppellantRespondent submitted that costs should follow the event. Reliance was placed in the case of Republic v Rosemary Wairimu Munene Ex Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, where the Court observed that costs are intended to compensate the successful party for the expense and trouble incurred in litigation. 18.The Appellant Respondent argued that having demonstrated that the application herein is incompetent and devoid of merit, she urged the Court to dismiss it with costs to herself. 19.The 1st and 2nd RespondentsApplicants subsequently filed their written submissions dated 24th April 2026, and urged the court to allow their Application with costs. 20.On the issue of extension of time to file a Notice of Appeal out of time, the 1st and 2nd RespondentApplicants submitted that extension of time to file an appeal out of time is a discretionary remedy requiring any such applicant to show ‘good and sufficient cause’ for the delay. Further, that such application must be filed promptly, supported by an Affidavit explaining the reasons for the delay, and show that the intended appeal is arguable. Further, the court must balance the applicant's right to appeal against the Respondent's right to finality. 21.It was also submitted that the discretion that any Court exercises in the determining an application seeking leave to file an appeal out of time is provided under Rule 4 of the Court of Appeal Rules, 2022, which provides as follows:“The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing z of any act authorized or required by these Rules, whether before or offer the o doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 22.Further, that under section 7 of the Appellate Jurisdiction Act, the High Court and by extension this Court, is also empowered to exercise the above-described discretion to extend the time for filing an appeal out of time. The said section 7 of the Appellate Jurisdiction Act provides as follows:The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence’. 23.Reliance was sought in the case of Edward Njane Nganga & another v Damaris Wanjiku Kamau & another [20161 eKLR, where the Court held that: -“… Section 7 of the Appellate Jurisdiction Act, Cap 9 Is drawn as follows: Section 7 Power of High Court to extend time. The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case Is it for appeal notwithstanding that the time for giving such notice or making such appeal may have already expired...It will be seen from the above that Section 7 is explicit, that the High Court (which now in light of the Constitution of Kenya 2010 needs to be construed as also including the Environment and Land Court and the Industrial Court), may extend time for giving notice of intention to appeal from a judgment of the High Court. The intention to appeal Is the Notice of Appeal. I think Section 7 does not need any more than a literal interpretation. Jurisdiction is clearly conferred to the High Court to extend time for the filing of a Notice of Appeal. To decide otherwise is akin to completely disregarding, what in my view, Is a clear provision in the law. Neither am I of the view that there is any conflict between the above provision and the provisions in the Court of Appeal Rules. Rule 4 of the Court of Appeal Rules also gives the Court of Appeal power to extend time, but it does not say that if is the Court of Appeal with exclusive power, in so far as the filing of a Notice of Appeal is concerned …” 24.Further, that 1st and 2nd Respondents Applicants submitted that contrary to what the Appellant Respondent asserted in their Submission, this Court has jurisdiction to extend the time for filing a Notice of Appeal pursuant to section 7 of the Appellant Jurisdiction Act; and that there is an option to file an application for extension of time for the filing of a Notice of Appeal either in the High Court, this Court or in the Court of Appeal as provided in Rule 43 of the Court of Appeal Rules,2022 provides as follows:“The Court may in its discretion entertain an application for stay of execution, injunction, stay of further proceedings or extension of flme for the doing of any act authorized or required by these Rules, notwithstanding the fact that no application has been made in the first instance to the superior court.” 25.On Stay of Execution of the Judgement and Decree delivered in this matter by Hon. Justice Mohamed Kullow on 9th October, 2025 and all consequential Orders arising there from, the 1st and 2nd RespondentsApplicants submitted as follows: That for an applicant to be entitled to the order of stay of execution, it must show that its intended appeal is arguable, and that if an order for stay of execution is not granted and the appeal succeeds, it will be rendered nugatory. 26.For the above reasons, the RespondentsApplicants relied on the cases of Royal Media Services Limited a 2 others v Attorney General & 8 others [20141 eKLR; Royal Media Services Limited v Veronica Chepkemol (20151 eKLR and Afforney General v Okiya Omtatah Okoifi & Another [20191 eKLR. 27.The RespondentsApplicants outlined the factors to consider before a stay is granted as held in the case of Antoine Ndlaye v African Vittual University [20151 eKLR, where the court stated that:“The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as It has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law: not capriciously or whimsically. Therefore, a stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules that:a.The application is brought without undue delay:b.The court Is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered: andc.Such security as the court orders for he due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. " 28.Further, the 1st and 2nd RespondentsApplicants submitted that their intended Appeal raises arguable grounds that deserve hearing before the Court of Appeal; and that the instant Application was brought promptly. 29.As regards to whether the appeal will be rendered nugatory if successful andor that the 1st and 2nd Respondents Applicants will suffer substantial loss unless the stay is granted, the Applicants invited the Court to take note of the fact that from the said Judgement, Hon. Justice Mohamed Kullow, not only cancelled the 1st Respondent's Title to the suit property by reversing the trial Court determination which had found in favour of the 1st and 2nd Respondents Applicants herein, and upheld the Appellant Respondent 's title, but also ordered that the 1st and 2nd RespondentsApplicants to vacate the suit property within ninety (90) days from the date of the Judgement, failing which the 1st and 2nd Respondents were to be evicted without any further Order from the Court. 30.The 1st and 2nd RespondentsApplicants also submitted that the Appellant Respondent had also in an Application dated 3rd March 2026, moved this Court seeking for Orders that it authorises the Officer Commanding Station (OCS) Narok Central Police Station, to provide security and maintain peace during the eviction of the 1st and 2nd Respondents, their agents, servants andor assigns from the suit property, CIS MARAOLELESHWA86; a clear intention that the Appellant Respondent had commenced the process of evicting 1st and 2nd RespondentsApplicants from the suit land. 31.Further, they submitted that the Court in determining whether to grant stay of execution must remember that this is a matter dealing with land as the substratum of the suit. Ownership and possession will be at the core of the appeal, and therefore, if the stay orders sought herein are not granted, and the 1st and 2nd RespondentsApplicants ’ appeal succeeds, they will have been deprived of the land that they have lived on since 2007 to date. Further, that they will incur substantial loss that cannot be compensated by way of damages, and any such eviction will render the intended appeal an academic exercise. 32.The RespondentsApplicants relied on the case of RWW v EKW [20191 eKLR, where the Court stated as follows:“The purpose of an application for stay of execution pending an appeal is to O preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should z weigh this right against the Success of a litigant who should not be deprived of o the fruits of hisher judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.” 33.Further, they submitted that balancing the interest of the parties herein tilts toward the grant of an order of staying the execution of the subject judgement. It was their further submissions that they have been the registered owners in occupation of the suit property since 2007; which proprietorship was upheld by the trial Court in Narok CMC ELC Case No. 15 of 2018. 34.They lamented that this position was altered by the Judgement of Hon.Justice Mohammed Kullow, and thus the AppellantRespondent seeks to extinguish the right of ownership over the suit property by the 1st and 2nd RespondentsApplicants as ordered by the court in the above referred Judgment by way of eviction. 35.Further, it was their submissions in the interest of justice the stay orders pending appeal should be grant, by ordering that the land in question remain registered in the names of the 1st and 2nd RespondentsApplicants pending the filing and hearing of the intended appeal and, that the eviction be halted during the pendency of the appeal to preserve the substratum of the suit. 36.The above are the argument for and against the instant Application and the rival written submissions. Having carefully considered the instant Notice of Motion Application , the Supporting Affidavit, the Grounds of Opposition, and the rival written submissions filed by the parties, the court finds the issues that arise for determination are:A.Whether this Court has jurisdiction to extend time for filing a Notice of Appeal out of time.B.Whether the 1st and 2nd Respondents Applicants have established sufficient cause for extension of time, and for deeming the Notice of Appeal already filed as properly on record.C.Whether the 1stand 2nd Respondents Applicants have satisfied the conditions for grant of stay of execution pending appeal.D.Who should bear the costs of the application. A). Whether this court has jurisdiction to extend time for filing a Notice of Appeal out of time. 37.The AppellantRespondent’s principal objection is that this Court is functus officio and lacks jurisdiction to enlarge time for lodging a Notice of Appeal, such jurisdiction being vested exclusively in the Court of Appeal under Rule 4 of the Court of Appeal Rules. 38.Jurisdiction is indeed everything and without it, a court must down its tools, as was held in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Civil Appeal No. 50 of 1989) [1989] KLR 1; [1989] eKLR. However, jurisdiction is not determined solely by the Court of Appeal Rules. It must also be examined in light of the provisions of the Appellate Jurisdiction Act. 39.Section 7 of the Appellate Jurisdiction Act expressly provides that:“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court…” 40.Following the promulgation of the Constitution of Kenya, 2010, the Environment and Land Court, being a superior court of equal status with the High Court, enjoys similar jurisdiction in matters falling within its mandate. The interpretation adopted in the case of Edward Njane Nganga & Another v Damaris Wanjiku Kamau & Another [2016] eKLR is persuasive to this court that Section 7 of the Appellate Jurisdiction Act empowers this Court to extend time for filing a Notice of Appeal. 41.This court concurs with the reasoning in the above referred case. It is clear that Rule 4 of the Court of Appeal Rules grants a similar discretion to the Court of Appeal, but it does not expressly oust the jurisdiction conferred upon this Court by statute. Consequently, this court holds and finds that it has jurisdiction to entertain the prayer seeking enlargement of time for filing a Notice of Appeal, out of time. B). Whether the Respondents Applicants have established sufficient cause for extension of time and for deeming the Notice of Appeal already filed as properly on record. 42.Extension of time is an equitable and discretionary remedy. The Court must consider, among other factors, the length of delay, the explanation for the delay, whether the intended appeal is arguable, and whether prejudice will be occasioned to the opposite party. 43.The RespondentsApplicants averred and contended that the impugned judgment was delivered on 9th October 2025, in the absence of the parties, and without notice having been issued despite the Court having previously indicated that the said judgment would be delivered on notice. It was their argument that they only became aware of the judgment on 4th November 2025, when their advocate’s representative visited the Narok ELC Registry, and accidentally came across the said judgment. 44.Significantly, the ApplicantRespondent did not place before the Court any evidence demonstrating that notice of delivery of judgment was issued to the parties or their advocates. Where a court directs that judgment shall be delivered on notice, parties are entitled to expect that such notice will issue by the court, before the said Judgment is delivered. 45.The right of appeal is a fundamental component of the administration of justice. A party should not be denied that right merely because a judgment was delivered without notice and the statutory period for lodging a Notice of Appeal consequently lapsed before the party became aware of the decision. 46.The chronology presented by the Respondents Applicants is plausible. Upon becoming aware of the impugned judgment on 4th November 2025, they obtained instructions, filed a Notice of Appeal dated 17th November 2025, and filed requests for proceedings, judgment and decree on 18th November 2025. The delay between discovery of the said judgment and filing of the Notice of Appeal was not inordinate. 47.Although the present application was filed on 18th December 2025, the ApplicantsRespondents had already demonstrated their intention to challenge the said judgment by filing the Notice of Appeal and requesting for the proceedings. The explanation offered by the 1st and 2nd RespondentsApplicants is reasonable and satisfactory in the circumstances. 48.Further, without delving into the merits of the intended appeal, this court is satisfied that the intended appeal is not frivolous. The judgment appealed against cancelled the 1st Respondent's title; upheld the AppellantRespondent’s title, and directed the Respondents Applicants to vacate the suit property. These are substantial questions affecting proprietary rights, and occupation to land and are deserving of consideration by the Appellate court. 49.In the circumstances, this court is persuaded that the 1st and 2nd RespondentsApplicants have demonstrated sufficient cause for extension of time to file Notice of Appeal out of time, and or enlarge time to file such Notice. 50.It would be contrary to the interests of justice to lock the 1st and 2nd RespondentsApplicants out of the appellate process on account of circumstances substantially occasioned by the absence of notice of delivery of judgment. 51.Accordingly, this court finds the instant application is merited and the same is allowed in terms of the the prayer for extension of time to file Notice of Appeal, and deem the Notice of Appeal dated 17th November 2025 and filed on 18th November 2025 as properly filed and served. 52.Likewise, the requests for proceedings, judgment and decree filed on 18th November 2025 are hereby deemed to have been properly filed and served, and the court allows the said prayer. C). Whether the Respondents Applicants have satisfied the conditions for grant of stay of execution pending appeal. 53.The applicable principles are found in Order 42 Rule 6 of the Civil Procedure Rules. The Applicants for such prayer must demonstrate that the application was brought without unreasonable delay; that substantial loss may result unless stay is granted; and that such security as the Court may order has been furnished. 54.As already found above, the delay in filing the application has been satisfactorily explained; the application cannot therefore be defeated on that ground. 55.On substantial loss, the impugned judgment ordered for cancellation of the 1st Respondent's title, and directed the RespondentsApplicants to vacate the suit property within ninety(90) days, failing which eviction would issue without further order of the Court. 56.The Respondents Applicants contended that they have occupied the suit land since 2007. It is also evident from the material before the Court that the Appellant Respondent has already taken steps towards implementation of the said judgment of the court, including seeking Police assistance during eviction. 57.Land occupies a unique position in our legal system, and once possession is lost, and third-party interests intervene, restoration may not be straightforward, even where an appeal subsequently succeeds. The Court must therefore preserve the substratum of the dispute pending appeal. 58.Consequently, this court is persuaded that eviction of the RespondentsApplicants and implementation of the impugned judgment before the intended appeal is heard would occasion substantial loss, and may render the intended appeal nugatory. This is precisely the type of situation that stay orders are intended to address. 59.However, the Court must balance the Applicants’ right of appeal against the AppellantRespondent 's right to enjoy the fruits of a successful judgment. It is the considered view of this court that balance is achieved by preserving the status quo pending determination of the appeal. 60.Regarding security, the decree in question principally concerns proprietary rights over land rather than a monetary award. In such circumstances, preservation of the suit property and maintenance of the prevailing status quo adequately secures the interests of both parties. Therefore, the Court finds it unnecessary to order for any monetary security. 61.For the above reasons, the court is satisfied that the Respondents Applicants have met the threshold for grant of stay of execution pending appeal. D). Who should bear the costs of the application. 62.Although the application is successful, the dispute concerns family land, and the circumstances giving rise to the application were substantially occasioned by the delivery of judgment without notice. In the interests of justice, each party shall bear their own costs of the application. 63.Having carefully considered all the pleadings herein and the rival written submissions, the relevant provisions of law and cited cases, the Court finds and holds that the instant Notice of Motion Application dated 18th December 2025, is merited and the same is allowed entirely in terms of prayers Nos.4, 5, 6 and 7, with costs being in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 4TH DAY OF JUNE 2026.L. GACHERUJUDGE4.06.2026.Delivered In the presence of:Elijah Meyoki – Court AssistantMr. Mutai for the ApplicantRespondent.Mr Kamwaro for the RespondentsApplicantsL. GACHERU.JUDGE