https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4609

Sava v Matano & another (Environment and Land Case E011 of 2025) [2026] KEELC 4609 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4609 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E011 of 2025 LL Naikuni, J July 8, 2026 Between Joseph Sava Plaintiff and Fatuma Rama Matano 1st Defendant Amina Rama Mwaurinda 2nd Defendant Ruling I. Introduction 1.Before this Court for determination are two ( 2 ) interrelated applications dated 3rd and 5th February, 2026 by both the Plaintiff and the Defendants respectively. 2.The applications arose from the Court's ruling delivered on 17th December, 2025 whereby this Court struck out the Plaintiff's suit. This was after finding that it lacked jurisdiction to entertain the dispute in the first instance, the dispute having fallen within the exclusive jurisdiction of the Business Premises Rent Tribunal established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 Laws of Kenya. 3.The first application is the Notice of Motion application dated 3rd February, 2026 filed by the Plaintiff seeking, principally, orders for stay of execution of the ruling delivered on 17th December, 2025 together with all consequential orders pending the hearing and determination of the application and the intended appeal before the Court of Appeal. 4.Upon considering the application Ex - Parte on 4th February, 2026, this Court granted interim orders staying execution pending the inter partes hearing of the application. 5.Aggrieved by the issuance of the said interim orders, the Defendants filed the Notice of Motion application dated 5th February, 2026. It is the second application. It sought that the interim stay orders issued on 4th February 2026 be set aside, vacated and discharged in their entirety on the principal ground that once this Court declared itself devoid of jurisdiction, it became functus officio and consequently lacked jurisdiction to entertain any subsequent application, including the Plaintiff's application for stay pending appeal. 6.The two applications are intrinsically intertwined. Whereas the Plaintiff seeks preservation of the subject matter pending the intended appeal, the Defendants contend that the Court lacked jurisdiction even to entertain the application for stay and therefore the interim orders issued on 4th February, 2026 were nullities ab initio. 7.Directions were subsequently issued that both applications be canvassed by way of written submissions, which have been duly filed and exchanged. II. Background 8.The genesis of this dispute traces back to a commercial tenancy relationship over premises situated on Plot No. Land Reference No. Kwale/Ukunda/3377 in Ukunda, Kwale County. The Respondent/Plaintiff, Joseph Musee Sava, constructed a bar and restaurant on a portion of land belonging to the late Rama Matano Mwaurinda (deceased) pursuant to a lease agreement entered into around the year 2001, under which he paid monthly ground rent. The Applicants/Defendants are the administrators of the estate of the deceased and successors in interest to the original lessor. 9.Following the demise of the original lessor in 2010, the Defendants issued a Termination Notice dated 11th October, 2023 to the Plaintiff citing, inter alia, non-payment of rent. The Respondent/Plaintiff challenged the termination by filing a Reference before the Business Premises Rent Tribunal (BPRT). By a ruling dated 5th August, 2024, the Tribunal dismissed the Reference and ordered the Plaintiff to vacate the premises. A decree was subsequently issued on 15th August, 2024. 10.Dissatisfied with the Tribunal’s decision, the Respondent/Plaintiff lodged an appeal before this Honourable Court. However, the appeal was withdrawn by his then advocates on 3rd February, 2025 and was withdrawn with costs. 11.Shortly thereafter, on 6th February, 2025, the Plaintiff instituted the present suit before this Court by way of a Plaint, accompanied by a Notice of Motion application dated 13th February, 2025 seeking injunctive relief. The suit was framed as a claim for valuation of his house, first priority to purchase the underlying land, and general damages for trespass. 12.The Defendants opposed the suit and raised preliminary objections on jurisdiction, contending that the dispute concerned a controlled tenancy falling exclusively within the jurisdiction of the BPRT under Cap. 301, and further that the suit was res judicata in light of the earlier Tribunal proceedings. 13.Upon consideration of the parties’ submissions, this Court delivered its ruling on 17th December, 2025 holding that it lacked jurisdiction to entertain the dispute. The Court found that the tenancy relationship constituted a controlled tenancy within the meaning of the provision of Section 2 (1) of Cap. 301 and that the appropriate forum was the BPRT. The Court invoked the doctrine of exhaustion and struck out the suit with costs to the 1st and 2nd Defendants. 14.Following the delivery of the ruling, the Defendants commenced execution processes. On 29th January, 2026, Swiftway Auctioneers served the Plaintiff with a Notice of Distress for Rent in respect of alleged rent arrears amounting to a sum of Kenya Shillings Seven Seventy Thousand (Kshs. 770,000.00/=), together with costs bringing the total of a sum of Kenya Shillings Eight Fifty Six Thousand (Kshs. 856,000.00/=), exclusive of auctioneers’ fees and other charges. 15.Faced with imminent execution, the Plaintiff filed, on 3rd February, 2026, a Certificate of Urgency, Notice of Motion application and Supporting Affidavit seeking orders of stay of execution of the ruling dated 17th December, 2025. He asserted that he had lodged a Notice of Appeal dated 19th December, 2025 that there was a real threat of demolition of his house, and that no extracted decree existed upon which execution could lawfully proceed. 16.On 4th February, 2026, this Court granted interim orders of stay of execution pending inter partes hearing of the application. 17.In response, the Defendants filed the Notice of Motion application dated 5th February, 2026 seeking to set aside, vacate and/or discharge the interim stay orders. Their principal contention is that upon declaring itself devoid of jurisdiction on 17th December, 2025, this Court became functus officio and therefore lacked jurisdiction to issue any further orders, including the stay orders granted on 4th February, 2026. 18.The Plaintiff opposed the Defendants’ application through a Replying Affidavit sworn on 13th April, 2026, maintaining that the Court retained residual jurisdiction to preserve the subject matter pending appeal and that the doctrine of functus officio did not bar the grant of such preservatory relief. 19.Both applications were thereafter directed to be canvassed together by way of written submissions, which have been duly filed and considered by this Court III. The Notice of Motion Application dated 3rd February, 2026 by the Plaintiff 20.The Plaintiff sought for the following orders: -a.Spent.b.THAT this Honourable Court be pleased to stay the execution of the decree and all consequential orders issued in respect of ruling delivered by Hon. Justice L.L Naikuni on 17/12/2025 in ELC NO. E011 OF 2025 AT KWALE between Joseph Musee Sava – Versus - Fatuma Rama Matano & Amina Rama Mwaurinda pending hearing and determination of this Application.c.THAT this Honourable Court be pleased to stay the execution of the decree and all consequential orders issued in respect of ruling delivered by Hon. Justice L.L Naikuni on 17/12/2025 in ELC NO. E011 OF 2025 AT KWALE between Joseph Musee Sava – Versus - Fatuma Rama Matano & Amina Rama Mwaurinda pending hearing and determination of the Appeal.d.THAT Costs of this application be provided in the cause. 21.The application is premised upon the grounds, testimonial facts and the averments made out under the supporting affidavit sworn by JOSEPH MUSEE SAVA the Plaintiff herein. The deponent averred as follows that: -a.He was the Plaintiff/Applicant herein and hence well conversant with the facts pertaining to this suit and do hereby swear this affidavit.b.A Ruling was delivered on 17th December, 2025 dismissing and/or striking out this suit in favour of the Respondents against the Applicant.c.The Ruling was entered in favour of the Respondent pursuant to the Replying Affidavit dated 19th March, 2025 and filed on 13th June, 2025. Attached and marked as "JMS - 1" was a copy of the ruling dated 16th December, 2025 which was uploaded on CTS on 21st January, 2026.d.Being aggrieved by the ruling delivered on 17th December, 2025 by Hon. L.L Naikuni for among other reasons, the Applicant was denied his right to be heard and it was based on wrong Principle of Law, has preferred an appeal against the entire ruling. Attached and marked as "JMS - 2” was a Notice of Appeal dated 19th December, 2025 and signed on 26th January, 2026.e.There was no decree extracted in this matter to warrant execution against the Applicant.f.The Respondents had not presented a draft decree for approval by the Applicant as was required by Order 21 Rule 8 of the Civil Procedure Rules, 2010.g.There had been no taxation of the Respondents' costs awarded in the High Court, there is no Certificate of Costs to determine the costs payable to the Respondents.h.The threat by the Respondents to execute was non-compliance with the statutory procedures espoused under the provision of Section 94 of the Civil Procedure Act, Cap of the Laws of Kenya, as no leave of court had been sought or obtained for purposes of executing the decree before costs was ascertained by way of taxation.i.The Applicant was apprehensive that it would suffer irreparable damage and/ or substantial loss if the orders for stay of execution was not granted.j.No loss, damage and/ or prejudice would be suffered by the Respondents if the stay orders was granted.k.The value of the house without land belonging to the Applicant was colossal and the Applicant was apprehensive that it would be unable to recover the said sum from the 1st Respondent in event the Applicant's appeal was successful.l.Unless the Application was granted, the Respondents may demolish the Applicants house notwithstanding that there was no Decree and Certificate of Costs in compliance with the relevant statutory procedures.m.Failure to grant the orders was akin to sanctioning a ruling obtained based on wrong application and/ or denial of the right to be heard.n.It was in the interest of justice and fairness that the orders sought herein be granted.o.The application was made without undue delay.p.What was deposed to herein was true to the best of my knowledge and belief and understanding, save for matters deponed to on information sources for which have been disclosed. IV. The response by the Defendants to the Notice of Motion Application Dated 3rd February 2026 22.The Defendants opposed the application through filing of a 22 Paragraphed Replying Affidavit sworn by FATUMA RAMA MATANO, the 1st Defendant herein. She averred as follows that:-a.She was a female adult of sound mind and disposition hence competent to swear this affidavit.b.She was the 1st Respondent herein and was well versed with the facts of this suit. She was swearing this affidavit on her own behalf and also on behalf of the 2nd Respondent in opposition to the application dated 3rd February, 2026.c.On 17th December, 2025, this Honourable Court delivered a ruling dismissing this suit for lack of jurisdiction, having found that this court's jurisdiction could only be invoked in its appellate jurisdiction and not the court of first instance as per paragraph 48 of its ruling. Annexed and marked as "FRM - I" was a copy of the ruling dated 17th December, 2025.d.Based on it's finding the court further held at Paragraph 49 of its ruling that where a court lacks jurisdiction "it cannot proceed on with the matter but down its tools".e.Notwithstanding the findings of the said ruling, the Court proceeded to entertain an application dated 3rd February, 2026 and thereafter issued orders of stay of execution of a negative ruling on 4th February, 2026.f.She was advised by her advocate on record that upon dismissing the suit for want of jurisdiction, this Honourable Court became functus officio and lacked legal authority to issue any further substantive or consequential orders.g.The jurisdiction was everything and without it a court must down its tools.h.She was further advised by her advocate on record that the said ruling dismissed the suit and there was no positive order capable of being executed and/or stayed pending an appeal, therefore the court erred in issuing stay of execution orders on non existing positive order and further to the foregoing there was no decree that had been extracted by the Respondents that it intended to execute.i.The Respondents advocate admitted in its application that no decree had been extracted and as a result any threat of execution of a negative order without a decree was imagined and incapable of being executed and as a result the subsequent orders of stay of execution issued on 4th February, 2026 were unwarranted.j.The application herein was triggered by the notice for distress for rent served upon the applicant on 29th January, 2026 in which the Respondents were demanding rent arrears of a sum of Kenya Shillings Seven Seventy Thousand (Kshs. 770,000/-) and auctioneers costs of a sum of Kenya Shillings Eighty Six Thousand (Kshs. 86,000/-) all amounting to a sum of kenya Shillings Eight Fifty Six Thousand (Kshs. 856,000/-). Annexed and marked as "FRM - 2" was a copy of the Proclamation Notice by Swiftway Auctioneers served upon the Respondent).k.It was after service of the said notice that the Applicant was ingeniously attempting to avoid and circumvent the auction of the proclaimed assets and or paying of rent using this court process.l.If the basis of filling of this application was genuine due to the pending appeal it ought to have been filed immediately the Notice of Appeal was filed. It would not be dependent on the uploading of the ruling on the CTS as alleged by the Respondents Counsel, the copy of the ruling was uploaded on the CTS on 5th January, 2026 which had nothing to do with the appeal.m.The above notwithstanding the ruling was uploaded on the CTS on 5th January, 2026 the Respondent never filed the instant application till after service of the notice for distress for rent.n.The Applicant was grossly abusing the court process by filing multiple applications in different court in respect of the same subject matter seeking similar orders and has subsequently filed a suit and an application being ”MCCC No. e032 of 2026 - Kwale, Joseph Save - Fatuma Rama Matano and Amina Rama Mwaurinda” in which the Applicant was challenging the said Proclamation Notice and had since obtained stay of execution orders. Annexed and marked as "FRM - 3 and 4" were application and pleadings dated 7th February, 2026 and court order dated 9th February, 2026.o.In addition to this suit and the one referred to of the lower court the applicant has filed multiple suits in other courts seeking similar reliefs to stop the Respondents from demanding the rent arrears that have accrued for years. The said suits are: -A. Tribunal case number BPRT/E310/2023 - Nairobi, Joseph Sava – Versus - Fatuma Rama Matano & Amina Rama Mwaurinda - reference dismissed on 5th August, 2024 (Annexed and marked as "FRM - 5" was a copy order of the tribunal dated 5th August, 2024).B. HCCA/E256/2024 - Mombasa, Joseph Sava – Versus - Fatuma Rama Matano & Amina Rama Mwaurinda - suit withdrawn by the Appellant on 3rd April, 2024C. ELCLC/ E011/2025 - Kwale, Joseph Sava – Versus - Fatuma Rama Matano & Amina Rama Mwaurinda - suit dismissed on 17th December, 2025.D. ELCLCA/E001/2025 - Kwale, Joseph Sava – Versus - Fatuma Rama Matano & Amina Rama mwaurinda - appeal against the ruling of the tribunal pending in court.E. MCCC No. E032 of 2026 - Kwale, Joseph Sava – Versus - Fatuma Rama Matano and Amina Rama Mwaurinda - Stay of execution orders in force and the suit is pending in court.p.It was evidently clear and obvious that the Applicant was forum shopping, grossly abusing the judicial process and wasting precious judicial time and that the application herein was malicious, was in bad faith and intended to avoid honouring his obligations as a tenant by abusing the process of this court.q.Based on the foregoing and this court having determined it never had jurisdiction to hear this matter and there being orders of stay of execution issued by the lower court it was legally untenable for this court to sustain stay orders of its negative orders and this court had no option other than discharging its earlier interim orders issued on 4th February, 2026 since the subject matter was being preserved pursuant to the orders of the lower court.r.Unless the said stay orders were set aside, the Respondent shall suffer undue prejudice arising from the continued subsistence of unlawful orders based on alleged appeal which was non compliant with the court of appeal rules.s.No prejudice would be occasioned to the Applicant if the stay orders issued on 4th February, 2026 were set aside since there was stay orders in the lower court which suit was actively pending in court.t.In the event that this court was inclined to extend the orders issued pending hearing and determination of the said appeal, the rules provide that the Applicant be ordered to furnish security as a condition for granting the stay. They urged this court to order that the Applicant be ordered to deposit a security of Kenya Shillings Eight Fifty Six Thousand (Kshs. 856,000/-) in the joint names of the advocates for the parties herein within 7 DAYS failure to which the stay orders would stand discharged.u.It was just and in the interest of justice that the stay of execution orders issued on 4th February, 2026 be set aside and the application dated 3rd February, 2026 be dismissed with costs.v.What was deposed to herein was true to the best of her knowledge, information and belief. V. The Notice of Motion Application dated 5th February 2026 by the Defendant 23.The Defendants sought for the following orders: -a.That the orders of stay of execution issued on 4th February 2026 be set aside, vacated and/or discharged in their entirety.b.That costs of this Application be awarded to the Applicants/Defendants. 24.The application is premised upon the grounds, testimonial facts and the averments made out under the supporting affidavit sworn by FATUMA RAMA MATANO the 1st Defendant herein. The deponent averred as follows that: -i.She was a Female adult of sound mind and disposition hence competent to swear this Affidavit.ii.She was the 1st Defendant/Applicant herein and she was well versed with the facts of this suit and was swearing this Affidavit on her own behalf and also on behalf of the 2nd Defendant/Applicant.iii.On 17th December, 2025, this Honourable Court delivered a ruling dismissing this suit for lack of jurisdiction, having found that this court’s jurisdiction could only be invoked in its appellate jurisdiction and not the Court of first instance as per paragraph 48 of its ruling. Annexed and marked as “FRM - 1” was a copy of the ruling dated 17th December, 2025.iv.Based on its finding, the Court further held at paragraph 49 of its ruling that where a court lacks jurisdiction “it cannot proceed the matter but down its tools”.v.Notwithstanding the findings of the said finding, the Court proceeded to entertain an application dated 3rd February, 2026 and thereafter issued orders of stay of execution of its ruling on 4th February, 2026.vi.She was advised by her Advocate on record that upon dismissing the suit for want of jurisdiction, this Honourable Court became functus officio and lacked legal authority to issue any further substantive or consequential orders.vii.Jurisdiction was everything and without it, a Court must down its tools.viii.She was further advised by her Advocate on record that the said ruling dismissed the suit and there was no positive order capable of being executed and or stayed pending an appeal, therefore the court erred in issuing stay of execution orders on non-existing positive order.ix.The Respondent’s/Plaintiff’s Advocate admitted in his application that no decree had been extracted and as a result any threat of execution of a negative order without a decree was imagined and incapable of being executed and as a result, the subsequent orders of stay of execution issued on 4th February, 2026 were unwarranted.x.The Application by the Respondent/Plaintiff dated 3rd February, 2026 was triggered by the Notice for distress for rent served upon him on 29th January 2026. Annexed and marked as “FRM - 2” was a copy of the Notice by Swift way Auctioneers served upon the Respondent).xi.It was after service of the said notice that the Respondent/Plaintiff was ingeniously attempting to avoid and circumvent the auction of the proclaimed assets and/or paying of rent using this Court process.xii.If the basis of filing of this application was genuinely due to the pending appeal, it ought to have been filed immediately the Notice of Appeal was filed and it would not be dependent on the uploading of the ruling on the CTS as alleged by the Respondent’s Counsel, the copy of the ruling was uploaded on the CTS on 21st January, 2026 which had nothing to do with the Appeal.xiii.The above notwithstanding, the ruling was uploaded on the CTS on 21st January, 2026 and the Respondent never filed the instant application till after service of the Notice for distress for rent.xiv.From the foregoing and the timing of the application for stay of execution, it was evidently clear that the application herein was malicious, in bad faith and intended to avoid honoring his obligations as a tenant by abusing the process of this court.xv.Unless the said stay orders was set aside, the Applicants/Defendants shall suffer undue prejudice arising from the continued subsistence of unlawful orders based on alleged appeal which was non-compliant with the Court of Appeal rules.xvi.She was advised by her Advocate on record that they intended to file an application to strike out the Notice of Appeal on the grounds that there was no valid appeal and that the Respondent/Plaintiff had failed to file and serve a letter requesting for typed proceedings and Judgment and file within the prescribed time upon the Applicants/Defendants as provided for under Rule 86 of the Court of Appeal 2022 and the 30 days within which such an application was to be filed was yet to lapse since the days starting running on 16th January, 2026.xvii.No prejudice would be occasioned to the Respondent/Plaintiff if the stay orders issued on 4th February, 2026 were set aside since there was no positive orders subsisting capable of protection by an order of stay. VI. The response by the Plaintiff to the Notice of Motion Application dated 5th February, 2026 25.The Plaintiff opposed the application through filing of a 13 Paragraphed Replying Affidavit sworn by JOSEPH SAVA, the Plaintiff herein. He averred as follows that: -i.He was the Plaintiff/Respondent herein hence competent to make and swear this Affidavit.ii.He had read and understood the Defendants/Applicants' application dated 5th February, 2026 together with the Supporting Affidavit sworn by Fatuma Rama Matano on the same date.iii.From the onset, he wished to state that this application was pre-mature and misconceived. The interim orders were granted pending inter parte hearing. Therefore, the proper remedy for the Defendants/Applicants was to file a Replying Affidavit and canvass their opposition at the hearing.iv.The interim orders were self limiting in that they were due for confirmation, variation or discharge. This Application was therefore unnecessary as the court was already scheduled to reconsider the orders. Annexed hereto and marked as “JS – 1” was a copy of the court order dated 4th February, 2026.v.He was advised by his advocates on record that the Defendants/Applicants' choice to file a parallel application in stead of responding to my application dated 3rd February, 2026 amounted to multiplicity of procedure, delay tactics and an abuse of the court process.vi.He was further advised by his Advocates on record that the Defendants/Applicants could not approbate and reprobate. Having elected not to respond to his application dated 3rd February, 2026, they could not indirectly oppose it through a collateral application.vii.In response to Paragraphs 4 to 6 of the said Affidavit, he was advised by his advocates on record, that functus officio means that the court could not re-open a matter. He was not asking the court to re-open this matter in any way as the Defendants/Applicants would like the court to believe. Instead, he was seeking ancillary orders which were well within the powers of this court.viii.In response to Paragraphs 8 to 9 of the said Affidavit, the Ruling of the court was not entirely negative. The court awarded costs to the Defendants/Applicants and this is positive and executable.ix.He was advised by his Advocates on record, that a cost order, being executable, was therefore capable of being stayed.x.In response to Paragraphs 10 to 16 of the said Affidavit, he wished to state as follows:-a.It was evident that the Defendants/Applicants sought to pre-empt and defeat his constitutional right to appeal by dealing in a property that was before the Court of Appeal.b.Contrary to the Defendant/Applicants' allegations that the appeal was only responsive to their actions, he wished to state that he had the intention of filing the appeal way before their said actions. Annexed hereto and marked as “JS – 2” was a copy of the Notice of Appeal dated 9th December, 2025.c.He had since filed and served the Record of Appeal dated 27th March, 2026 at the Mombasa Court of Appeal Civil Appeal No E044 of 2026 and he was therefore ready to prosecute the appeal. Annexed hereto and marked as “JS – 3” was a copy of the Record of Appeal.d.His appeal raised triable issues as the doctrine of exhaustion was contestable.e.The Defendants/Applicants sent Auctioneers who proclaimed his goods and tools of trade which he filled a lower court file MCCC NO. E032 OF 2026 AT KWALE of which an Order was issued or directed him to pay all the accrued ground rents which he did to the Defendants/Applicants Advocates. Annexed hereto and marked as “JS – 4” was a copy receipt, Summons to Enter Appearance and Court Order staying of execution.f.The Defendants/Applicant had been harassing and intimidating him by refusing to receive his rent and sending auctioneer at night. They were hell bent in demolishing his house.g.He was paying rent and no prejudice shall suffered if the orders were confirmed.i.In response to Paragraph 17 of the said Affidavit, he wished to state that the Defendants/Applicants' application was prejudicial to him as execution would render the appeal nugatory. The risks he stood to suffer, as the Defendants/Applicants had rightly acknowledged, would be loss of property through auction and a possible eviction, which would be irreparable even if the appeal succeeds.ii.Therefore, he made and swore this Affidavit to oppose the Defendants/Applicants application dated 5th February, 2026.iii.What he deponed herein was true to the best of his knowledge, opinion and belief, save for the sources which he had sufficiently disclosed. VII. Submissions. 26.The parties were directed by Court to canvass the application dated 3rd February 2026 and 5th February, 2026 respectively by way of written submissions. 27.Pursuant to that all parties obliged and the Court undertook to deliver the Ruling on notice. Eventually, it delivered the said Ruling on 8th July, 2026 accordingly. A. The Written Submissions by the Plaintiff 28.The Plaintiff through the Law Firm of Messrs. Mwaniki Gitahi & Partners Advocates, filed their written submissions in support of the Notice of Motion application dated 3rd February, 2026. Mr. Mwaniki Advocate commenced his submissions by providing a brief background of the application, stating that the Applicant sought an order of stay of execution of the ruling delivered on 16th December, 2025, together with all consequential orders, pending the hearing and determination of both the application and the intended appeal before the Court of Appeal. Counsel submitted that the Applicant had already lodged an appeal – “Mombasa Court of Appeal Civil Appeal No. E044 of 2026” and unless the stay orders were granted, the intended appeal would be rendered nugatory. 29.The Learned Counsel averred that the Defendants/Respondents had opposed the application through the Replying Affidavit sworn on 10th April, 2026, principally contending that the ruling sought to be stayed was a negative order incapable of execution and that the Plaintiff/Applicant was engaging in forum shopping. Counsel argued that these objections lacked merit and did not disentitle the Applicant from obtaining preservatory relief pending appeal. 30.The Learned Counsel submitted on a number of issues. Firstly, on the issue of whether the Applicant had established sufficient grounds for the grant of stay pending appeal. The Counsel argued that the application satisfied the requirements under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010. He asserted that the Applicant had already exercised his constitutional and statutory right of appeal by filing both the Notice of Appeal and the Record of Appeal before the Court of Appeal, thereby demonstrating seriousness and diligence in pursuing the appellate process. 31.The Learned Counsel further submitted that the right of appeal is a fundamental right guaranteed under the provision of Articles 48 and 50(1) of the Constitution of Kenya, 2010, as well as Section 66 of the Civil Procedure Act. The Counsel argued that the purpose of stay pending appeal was to preserve the subject matter of litigation so that an appeal is not rendered merely academic or nugatory. In support of this proposition, reliance was placed on the decision in the case of:- “Dreamline Express Limited – Versus - Nyawa & Another [2025] KEHC 19627 (KLR)”, where the Court held that although a successful litigant is entitled to enjoy the fruits of judgment, that right must be balanced against an unsuccessful litigant's constitutional right to pursue an appeal. 32.The Learned Counsel opined that the provision of Order 42 Rule 6(4) of the Civil Procedure Rules recognizes that an appeal was deemed to have been filed upon the filing of a Notice of Appeal. Therefore, the Counsel contended that the Defendants'/Respondents' allegation that no competent appeal existed at the time of filing the application was erroneous because the Notice of Appeal had already been lodged before the application dated 3rd February, 2026 was filed. 33.Secondly, regarding the statutory requirements for grant of stay, the Counsel identified the three conditions set out under the provision of Order 42 Rule 6(2) of the Civil Procedure Rules, namely:-a.That the Applicant must demonstrate substantial loss unless the stay is granted;b.That the application must be brought without unreasonable delay; andc.That the Applicant must furnish such security as the Court may order for the due performance of the decree or order. 34.On the issue of substantial loss. The Learned Counsel held that the Applicant had demonstrated that the Defendants/Respondents had already commenced execution by taking steps to auction the Applicant's property and had threatened to evict him from the suit premises. The Counsel argued that should the intended execution proceed before the appeal is heard, the Applicant's business would be disrupted, his proprietary interests prejudiced, and the resulting loss would not be adequately compensable by an award of damages. Consequently, the intended appeal would be rendered nugatory. 35.On the question of whether the application had been filed without unreasonable delay. The Learned Counsel submitted that the ruling was delivered on 16th December, 2025 and made available on the Court Tracking System on 21st January, 2026, on which date the Applicant promptly filed his Notice of Appeal. Counsel submitted that the present application was filed approximately one month thereafter, during which period the Applicant had been actively pursuing certified copies of the proceedings and the ruling. Therefore, the Counsel contended that the application had been filed expeditiously and without unreasonable delay. 36.With regard to the requirement of security for the due performance of the decree. The Learned Counsel submitted that the Plaintiff/Applicant was ready and willing to comply with any conditions relating to security that the Court might deem appropriate for purposes of preserving the subject matter of the appeal. To buttress on this point, the Counsel relied on the decision in the case of:- “Port Florence Community Hospital – Versus - Lakepharm Limited [2026] KEHC 1767 (KLR)”, wherein the Court observed that the purpose of security in an application for stay is to preserve the subject matter of the appeal while ensuring that the successful litigant is adequately protected should the appeal ultimately fail. 37.The Learned Counsel further submitted that the arguments advanced by the Defendants/Respondents concerning the competency of the intended appeal and the timelines within which it had been filed were matters reserved for determination by the Court of Appeal. According to Counsel, the Environment and Land Court was only required to determine whether the Applicant had met the legal threshold for grant of stay under the provision of Order 42 Rule 6 of the Rule and was not called upon to determine the merits or competence of the appeal itself. 38.In conclusion, the Learned Counsel urged the Court to find that the Plaintiff/Applicant had satisfied all the statutory conditions for the grant of stay pending appeal. He therefore prayed that the Notice of Motion dated 3rd February, 2026 be allowed as prayed, with costs being in the cause. 39.At the same time, while in opposition to the Defendants'/Applicants' Notice of Motion application dated 5th February, 2026, the Learned Counsel commenced his submissions by providing a brief background of the application. He stated that the Defendants/Applicants sought to set aside the interim stay of execution orders issued by this Court on 4th February, 2026 on the ground that the Court had become functus officio after delivering its ruling on 16th December, 2025. The Counsel submitted that the Plaintiff/Respondent had opposed the application through the Replying Affidavit sworn on 13th April, 2026, contending that the application constituted an abuse of the court process and amounted to an unnecessary duplication of proceedings. 40.The Learned Counsel identified a single issue for determination, namely, whether the interim stay orders issued by the Court on 4th February, 2026 ought to be set aside. The Counsel submitted that all the arguments advanced by the parties ultimately revolved around that central question. 41.On whether the Court had become “functus officio”, the Learned Counsel asserted that the Defendants'/Applicants had misconstrued the doctrine. The Counsel argued that although this Court had determined the substantive dispute by declining jurisdiction, the Plaintiff/Respondent was not inviting the Court to revisit or reconsider that determination. Rather, the Plaintiff/Respondent merely sought preservatory orders staying execution pending the determination of the appeal. The Counsel maintained that the doctrine of “functus officio” only precluded a court from reopening issues already conclusively determined and did not bar the court from exercising residual jurisdiction over ancillary or consequential matters. 42.In support of that proposition, the Learned Counsel relied on the Supreme Court decision in the case of:- “Odinga & Another – Versus - Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 8 (KLR)”, wherein the Court explained that the doctrine of “functus officio” was founded on the principle of finality of litigation and only prevented a court from revisiting the merits of a matter already determined. The Counsel further referred the Court to the decision in “Jersey Evening Post Limited – Versus - Al Thani [2002] JLR 542”, which emphasized that a court becomes “functus officio” only after fully performing its judicial function, but retains limited authority to deal with ancillary matters that do not alter or vary the substance of its decision. 43.The Learned Counsel further relied on the decision in “John Gilbert Ouma – Versus - Kenya Ferry Services Limited [2021] KEHC 7107 (KLR)”, where the Court held that the doctrine of “functus officio” did not prohibit a court from entertaining ancillary applications after Judgment, but merely restrains it from engaging in a merit-based reconsideration of issues already conclusively determined. Therefore, the Counsel urged the Court to find that the application for stay pending appeal did not invite the Court to review or vary its earlier ruling and was therefore properly before the Court. 44.The Learned Counsel further averred that if indeed the Defendants'/Applicants genuinely believed that this Court lacked jurisdiction to entertain any proceedings after the ruling of 16th December, 2025, then the proper course would have been to challenge the interim orders before the appellate court rather than filing another application before the very court they alleged to have become “functus officio”. The Counsel argued that the Defendants'/Applicants could not simultaneously contend that the Court lacked jurisdiction while at the same time inviting the Court to exercise that very jurisdiction by determining their application. 45.The Counsel also submitted that the Defendants'/Applicants' application constituted an unnecessary duplication of proceedings because the issues raised therein substantially mirrored the grounds already advanced in opposition to the Plaintiff/Respondent's application for stay pending appeal. According to Counsel, instead of filing a separate application, the Defendants/Applicants ought to have responded by way of a Replying Affidavit and submissions in opposition to the Plaintiff/Respondent's application. The filing of a separate application unnecessarily multiplied proceedings and occasioned avoidable delay. 46.In conclusion, the Learned Counsel urged the Court to dismiss the Defendants'/Applicants' Notice of Motion application dated 5th February, 2026 with costs. In the alternative, the Counsel prayed that, for purposes of judicial economy and efficient disposal of the dispute, the Court should consider the two applications together and render one comprehensive ruling determining all the issues raised by the parties. VIII. Analysis & Determination 47.I have meticulously considered the two (2) Notice of Motion applications dated 3rd February 2026 and 5th February 2026, respectively, the grounds in support thereof, the rival Replying Affidavits together with the annextures thereto, the comprehensive written submissions filed by the respective Learned Counsel, the numerous authorities cited by the parties, the relevant provisions of the Constitution of Kenya, 2010, the Environment and Land Court Act, No. 19 of 2011, the Civil Procedure Act, Cap. 21, the Civil Procedure Rules, 2010, the Court of Appeal Rules, 2022 and the applicable principles of law. This Court has equally taken into account the record of proceedings together with its earlier ruling delivered on 17th December, 2025. 48.In order to arrive at a just, fair, reasoned and legally sound determination, this Court has distilled the following six ( 6 ) issues for determination: -a.Whether this Court became functus officio upon delivering its ruling dated 17th December, 2025 declaring that it lacked jurisdiction over the dispute.b.Whether this Court retained residual or ancillary jurisdiction to entertain and determine the Plaintiff's Notice of Motion application dated 3rd February, 2026 seeking stay pending appeal.c.Whether the ruling delivered on 17th December, 2025 constituted a negative order incapable of being stayed pending appeal.d.Whether the Plaintiff/Applicant has satisfied the legal threshold for the grant of an order of stay of execution pending appeal under the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.e.Whether the Defendants'/Applicants' Notice of Motion application dated 5th February, 2026 seeking to set aside, vary, disc the interim stay orders has merit.f.Who should bear the costs of the two applications. ISSUE No. a). Whether this Court became functus officio upon delivering its ruling dated 17th December, 2025 declaring that it lacked jurisdiction over the dispute.. 49.Under this Sub – title, the Honourable Court shall critically the effect of Court’s jurisdiction to deal with the instant case and the concept of “functus officio”. The gravamen of the Defendants’ Notice of Motion application dated 5th February, 2026 is that this Court, having delivered its ruling on 17th December, 2025 striking out the Plaintiff’s suit for want of jurisdiction, immediately became “functus officio” and consequently lacked jurisdiction to entertain any subsequent application, including the Plaintiff’s Notice of Motion application dated 3rd February, 2026 seeking orders of stay pending appeal. They submitted that the interim stay orders issued by this Court on 4th February, 2026 were made without jurisdiction and were therefore null and void ab initio. 50.Conversely, the Plaintiff/Respondent contends that although this Court conclusively determined the issue of original jurisdiction over the dispute, it nevertheless retained limited residual jurisdiction to preserve the subject matter pending the determination of the appeal before the Court of Appeal. According to the Plaintiff, the application for stay neither sought to review, vary nor set aside the ruling of 17th December, 2025, but merely sought ancillary relief aimed at safeguarding the intended appeal from being rendered nugatory. 51.Fundamentally, the point of departure must be the law relating to jurisdiction. It is now firmly settled that jurisdiction is the lifeblood of every judicial proceeding. Without jurisdiction, a court has no legal authority to entertain proceedings, determine disputes or grant relief. Jurisdiction flows either from the Constitution or statute and cannot be assumed, implied or conferred by the consent of parties. 52.This legal ratio was well laid down in the now “locus classicus” case on this subject the celebrated decision of the Court of Appeal in “Owners of the Motor Vessel “Lillian S” – Versus – Caltex Oil (Kenya) Limited [1989] KLR 1”, where Nyarangi JA stated:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence. A court of law downs its tools the moment it holds the opinion that it is without jurisdiction.” 53.The Supreme Court re - affirmed this principle in the case of:- “Samuel Kamau Macharia & Another – Versus – Kenya Commercial Bank Limited & 2 Others [2012] eKLR”, where it emphatically held that a court can only exercise jurisdiction as conferred by the Constitution or statute and cannot arrogate to itself jurisdiction exceeding that which has been expressly donated by law. 54.It is therefore beyond contest that this Court correctly held in its ruling dated 17th December, 2025 that it lacked original jurisdiction to entertain the dispute before it. Indeed, that finding has not been challenged before this Court and remains binding unless overturned by the Court of Appeal. 55.However, the issue presently before this Court is fundamentally different. With all due respect, and I fully concur with the submissions by the Learned Counsel for the Plaintiff to wit that the Court is not being invited to revisit the correctness or otherwise of its earlier determination on jurisdiction. Nay. Far from it. Rather, it is being called upon to determine whether the doctrine of functus officio deprived it of every residual judicial authority after delivery of the ruling. 56.To begin with, The Black's Law Dictionary, Ninth Edition defines the describes “functus officio” as: -“having performed his or her office]” (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” 57.All said and done, the rule of “functus officio has exceptions. Section 99 of the Civil Procedure Act, Cap. 21 establishes the slip rule and it provides that:-“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” 58.As already cited by the Plaintiff, the Supreme Court of Kenya in the case of “Raila Odinga & 2 Others – Versus - Independent Electoral & Boundaries Commission & 3 Others [Supra), cited with approval an excerpt from an article by Daniel Malan Pretorius entitled:- “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 59.To further back up this legal preposition, I wish to relay on the Court of appeal case of:- “Telkom Kenya Limited – Versus - John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Limited [2014] eKLR”, where it held as follows on the functus officio doctrine: -“The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions...”“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon--The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re - St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions. --” 60.In addition, the Supreme court also referred to the case of “Jersey Evening Post Limited – Versus - A. Thani [2002] JLR 542 at pg. 550” where the Court stated: -“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.” [own emphasis] 61.The foregoing authorities demonstrate that the doctrine of functus officio is neither absolute nor inflexible. Its application depends upon the nature of the subsequent proceedings before the court. If the subsequent application seeks to reopen the merits of the dispute, review the judgment or vary the substantive findings already made, the doctrine applies with full force. However, where the application merely invokes an ancillary jurisdiction expressly conferred by statute, the doctrine does not necessarily deprive the court of authority to entertain it. 62.It must be stated clearly that the doctrine of functus officio is not an absolute or inflexible rule that seals off a court from the world the moment it delivers a judgment. It is a doctrine concerned primarily with protecting the finality and integrity of judicial decisions by preventing the decision-maker from unilaterally revisiting, revising, or reversing what has been decided. As the court in Jersey Evening Post observed, it does not even prevent a court from correcting its own clerical errors. A fortiori, it cannot be said to prevent a court from entertaining ancillary applications that arise from, but do not disturb, the substance of its decision. 63.The pivotal distinction that must be drawn in this case is between re-opening the merits of the decision on the one hand, and exercising residual jurisdiction over consequential matters on the other. The former is what the doctrine prohibits. The latter is what the Plaintiff seeks. The Plaintiff's application for stay of execution does not invite this Court to reconsider whether it has jurisdiction, to revisit the evidence that led to the striking out of the suit, or to arrive at a different substantive outcome. The application accepts the ruling of 17th December, 2025 as it stands and simply asks that its execution be suspended while the appeal to the Court of Appeal runs its course. This Court is therefore not being asked to sit in appeal over its own decision — it is being asked to make a procedural, ancillary order to preserve the status quo. 64.There is another dimension to this issue that I find compelling. The power to grant stay of execution pending appeal is a statutory power conferred by the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap. 21. These provisions empower a court to grant a stay of execution to a party who intends to appeal against a decision of that court. The very structure of the rule presupposes that the court that delivered the decision retains — even after delivering judgment — the jurisdiction to entertain a stay application. If the functus officio doctrine operated as broadly as the Defendants suggest, Order 42 Rule 6 would be rendered largely nugatory, because a court would become functus the moment it delivered any decision and could never thereafter entertain a stay application. Such a construction would be manifestly absurd and contrary to the evident purpose of the rule. 65.I am further persuaded by the Plaintiff's argument that the Defendants cannot approbate and reprobate. Having filed their own application before this very Court — namely the Notice of Motion application dated 5th February, 2026 seeking to set aside the interim stay orders instead of preferring an appeal before the Court of Appeal - the Defendants themselves invoked the jurisdiction of this Court. One cannot simultaneously assert that a court lacks jurisdiction and, in the same breath, file an application before that court seeking substantive relief. Having submitted to the jurisdiction of this Court for the purpose of their own application, the Defendants are estopped from denying its jurisdiction in respect of the Plaintiff's application. 66.Based on the foregoing, I discern, therefore, that the doctrine of functus officio does not bar this Court from entertaining the Plaintiff's application for stay of execution pending appeal. This Court retains residual jurisdiction to deal with all procedural and ancillary applications that arise from its ruling of 17th December, 2025, including an application for stay of execution pending appeal, for the simple reason that entertaining such an application does not require the Court to revisit, reopen, or vary the substantive determination already made. SUBDIVISION - ISSUE No. b). Whether this Court retained residual or ancillary jurisdiction to entertain and determine the Plaintiff's Notice of Motion dated 3rd February 2026 seeking stay pending appeal. 67.Having found that the doctrine of functus officio does not completely extinguish every incidental jurisdiction of the Court, I now proceed to determine whether this Court retained residual jurisdiction to entertain the Plaintiff’s application for stay pending appeal. 68.The Defendants have argued that once this Court held that it lacked jurisdiction over the substantive dispute, it equally lacked jurisdiction to grant stay of execution pending appeal. According to them, an order of stay is itself a substantive judicial order which cannot issue from a court that has already declared itself devoid of jurisdiction. 69.On the other hand, the Plaintiff submits that jurisdiction to grant stay of execution pending appeal does not arise from the Court’s original jurisdiction over the dispute but from the express provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 which empowers the court appealed from to preserve the subject matter pending appeal. 70.The orders of Stay of execution is governed by the provision of Order 42 Rule 6(1) of the Civil Procedure Rules, 2010. It provides as follows:- 71.The provision expressly provides that an appeal shall not operate as a stay of execution except in so far as the court appealed from may order. The Rule therefore expressly confers jurisdiction upon the trial court to entertain applications for stay pending appeal. 72.The jurisdiction donated by Order 42 Rule 6 is neither original nor appellate. It is ancillary to the appellate process and exists for the sole purpose of preserving the subject matter pending determination of the appeal. Its exercise does not involve reconsideration of the merits of the judgment but merely facilitates the constitutional and statutory right of appeal. 73.At the very initial stages of building jurisprudence in this area, the Court of Appeal in “Butt – Versus – Rent Restriction Tribunal [1982] KLR 417 emphasized that the power to grant stay is discretionary and should be exercised in a manner that ensures an appeal, if successful, is not rendered nugatory. Likewise, in the case of:- “Halai & Another – Versus – Thornton & Turpin (1963) Limited [1990] KLR 365”, the Court held that the jurisdiction under Order 42 Rule 6 is intended to preserve the substratum of the appeal while balancing the competing rights of the parties. 74.I respectfully agree with the Plaintiff’s submission that if every trial court automatically lost all jurisdiction immediately upon delivering judgment, the express provisions of Order 42 Rule 6 permitting applications before the court appealed from would be rendered superfluous. Courts must interpret statutory provisions harmoniously and in a manner that gives effect to every provision enacted by Parliament. 75.More importantly, Articles 48, 50(1) and 159(2)(d) of the Constitution require courts to administer justice in a manner that facilitates rather than hinders access to appellate justice. The right of appeal would be severely undermined if litigants were denied an opportunity to seek interim preservation from the very court whose decision is the subject of the appeal. 76.In a nutshell, I find that notwithstanding the ruling delivered on 17th December, 2025, this Court retained limited statutory jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules, 2010 to entertain and determine the Plaintiff’s Notice of Motion seeking stay pending appeal. ISSUE No. c). Whether the ruling delivered on 17th December 2025 constituted a negative order incapable of being stayed pending appeal. 78.Having found that this Court retained limited residual jurisdiction under the provisions of Order 42 Rule 6 of the Civil Procedure Rules to entertain the Plaintiff’s application for stay pending appeal, I now proceed to determine whether the ruling delivered on 17th December, 2025 constituted a negative order incapable of being stayed pending appeal. This issue is central to both applications before this Court because the Defendants’ principal argument is that there existed no executable decree capable of being stayed. 79.The Defendants/Applicants have vehemently submitted that the ruling delivered on 17th December, 2025 merely struck out the Plaintiff’s suit for want of jurisdiction with costs to the Defendants. According to them, such a ruling neither compelled the Plaintiff to perform any act nor restrained him from undertaking any action. It merely terminated the proceedings before this Court. Consequently, they argue that the ruling was purely a negative order incapable of execution except with regard to the order on costs. 80.They further submitted that this Court committed an error in granting interim orders of stay on 4th February ,2026 because there was no decree capable of execution. They emphasized that the Plaintiff himself admitted that no decree had been extracted and therefore there existed no executable order upon which stay could properly issue. 81.The Plaintiff/Respondent, however, took a contrary position. Learned Counsel submitted that although the substantive suit had been struck out, the ruling nevertheless gave rise to executable consequences, particularly the award of costs and the subsequent execution processes commenced by the Defendants. Counsel argued that unless the Court preserved the status quo pending appeal, the intended appeal would be rendered nugatory. 82.It is therefore necessary to examine the jurisprudence governing what constitutes “a positive and negative order” capable or not of execution or of being stayed pending appeal. 83.In the case of:- “Western College of Arts and Applied Sciences (WECA) – Versus – Oranga & Others [1976] KLR 63, the Court held as follows:-“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In respect of the main suit there is nothing arising out of the judgment for this Court, in an application for stay, to enforce or restrain by injunction.” 84.The above decision has over the years become the locus classicus on what constitutes a negative order. It establishes the principle that where a judgment merely dismisses or strikes out proceedings without directing a party to undertake any positive act. Such judgment is incapable of execution except with respect to the consequential order for costs. 85.In the case of “Kanwal Sarjit Singh Dhiman – Versus – Keshavji Jivraj Shah [2008] eKLR”, where it held that a dismissal order is a negative order incapable of execution because it imposes no positive obligation upon any party. Likewise, in the case of:- “Co-operative Bank of Kenya Limited – Versus – Banking Insurance & Finance Union (Kenya) [2015] eKLR”, the Court of Appeal reaffirmed that an order dismissing proceedings merely terminates litigation and does not require any party to perform a positive act capable of execution. 86.Similarly, in the case of:- “Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme – Versus – Milimo Muthomi & Company Advocates & Others [2022] eKLR”, the Court once again emphasized that dismissal orders are ordinarily negative orders incapable of being stayed save only in relation to the order for costs. 87.The foregoing authorities leave little room for doubt that the substantive portion of the ruling delivered by this Court on 17th December, 2025, whereby the Plaintiff’s suit was struck out for want of jurisdiction, constituted a negative order. It neither directed the Plaintiff to vacate the suit premises nor ordered the demolition of his house. Neither did it compel payment of rent nor authorize distress for rent. The ruling merely terminated the proceedings before this Court. 88.The Plaintiff nevertheless argues that following the dismissal of the suit, the Defendants commenced distress proceedings through Swiftway Auctioneers demanding rent arrears amounting to Kenya Shillings Eight Hundred and Fifty-Six Thousand (Kshs. 856,000/=) and threatened demolition of his house. According to him, these actions amount to execution of the ruling and ought therefore to be stayed. With tremendous respect to learned counsel for the Plaintiff, I am unable to entirely agree with that proposition. 89.The distress proceedings complained of by the Plaintiff do not arise from the decree of this Court. Rather, they arose from the Defendants’ assertion of their contractual and statutory rights as landlords. Equally, the threatened distress is predicated upon alleged rent arrears said to have accumulated under the tenancy relationship between the parties. 90.The proclamation issued by the auctioneers is not an execution of the decree resulting from the ruling dated 17th December, 2025. It is a separate legal process founded upon the landlord’s alleged right to recover rent. Whether those proceedings are lawful or otherwise is a matter falling for determination before the appropriate forum and not in the present applications. 91.The Court therefore agrees with the Defendants that the distress proceedings cannot, strictly speaking, be described as execution of the decree arising from the ruling delivered by this Court. 92.It is equally true that this Court awarded costs to the Defendants upon striking out the Plaintiff’s suit. An order for costs is undoubtedly a positive order capable of execution. The provision of Section 27 of the Civil Procedure Act, Cap. 21 recognizes costs as an integral part of a decree. Upon taxation or assessment, such costs become executable in the ordinary manner provided under the Civil Procedure Act and Rules. Hence, I hold that while the dismissal of the suit constituted a negative order, the consequential order as to costs is a positive and executable order capable of being stayed in appropriate circumstances. 93.This position was recognized in “Housing Finance Company of Kenya Limited – Versus – Sharok Kher Mohamed Ali Hirji & Another [2015] eKLR, where the Court observed that although dismissal of a suit is a negative order, the order on costs remains capable of execution and may therefore, where circumstances warrant, be the subject of an order of stay. 94.The Plaintiff has also argued that unless stay is granted, the intended appeal shall be rendered nugatory because the Defendants may proceed to demolish his house and dispose of his goods through distress proceedings. 95.While this Court appreciates those concerns, it is necessary to distinguish between preservation of the subject matter pending appeal and stay of execution of the decree appealed from. The two concepts, though related, are not always identical. 96.In the present case, the decree appealed from is substantially negative. However, the Plaintiff has demonstrated that there are consequential actions which may substantially affect the subject matter of the intended appeal if left unchecked. The Court cannot ignore those realities merely because the decree itself is substantially negative. 97.Courts exist to administer substantive justice and not merely technical justice. The Court is therefore required to adopt an interpretation that safeguards the constitutional right of appeal while remaining faithful to the settled principles governing stay of execution. 98.Accordingly, I find and hold that although the ruling delivered on 17th December, 2025 was substantially a negative order incapable of execution except as regards costs, the existence of an executable order on costs together with the consequential enforcement measures complained of by the Plaintiff justifies this Court proceeding to consider whether the Plaintiff has satisfied the requirements stipulated under Order 42 Rule 6 of the Civil Procedure Rules, 2010. ISSUE No. d) Whether the Plaintiff has satisfied the legal threshold for the grant of an order of stay of execution pending appeal under the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010. 99.As already indicated above, the law concerning stay of execution pending Appeal is found in the provision of Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, 2010 which stipulates as follows:“No Appeal or second Appeal shall operate as a stay of execution or proceedings under a decree or order Appealed from except 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, the Court to which such Appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the Appeal is preferred may apply to the appellate Court to have such order set aside.(2)No order for stay of execution shall be made under sub rule (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. 100.The purpose for the stay of execution was well spelt out in the case of “RWW – Versus - EKW [2019] eKLR”, the Court opined:-“...The purpose of an application for stay of execution pending an appeal is to 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 It is trite law that stay of execution pending appeal is a discretionary power bestowed upon this court by the law. In the initial stages of building Jurisprudence around this legal aspect, the Court of Appeal in the case of “Butt –Versus- Rent Restriction Tribunal (Supra) gave guidance on how a court should exercise the said discretion and held that:“1.The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the Judge’s discretion. 3.A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings. 4.The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. 5.The Court in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 101.Further to the above, stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act, Cap. 21 or in the interpretation of any of its provisions. 102.The provision of Section 1A (2) of the Civil Procedure Act, Cap. 21 provides that:-“the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under the provision of Section 1B some of the aims of the said objectives are:-“the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.” 103.There are three conditions for granting of stay order pending Appeal under Order 42 Rule 6 (2) of the Civil Procedure Rules to which:i.The Court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered;ii.The application is brought without undue delay andiii.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. 104.I find issues for determination arising therein namely:i.Whether the Applicant has satisfactorily discharged the conditions warranting the grant of stay of execution of judgment pending Appeal.ii.What orders this Court should make 105.The purpose of stay of execution is to preserve the substratum of the case. In the case of “Consolidated Marine – Versus - Nampijja & Another, Civil App.No.93 of 1989 (Nairobi)”, the Court held that:-“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”. 106.This principle was enunciated in the decision of Gikonyo J. in the case of:- “Absalom Dova – Versus - Tarbo Transporters (2013) eKLR, where he stated:“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court: as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights: the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation..." a) Substantial loss. 107.The case of “Tropical Commodities Suppliers Ltd& Others – Versus - International Credit Bank Ltd (in liquidation) [2004] 2 EA 331” where Ogolla J, stated that:-“...Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or smal1, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal..." 108.As such, for an applicant to move the court into exercising the said discretion in his favour, the applicant must satisfy the court that substantial loss may result to him unless the stay is granted. 109.As for the applicant having to suffer substantial loss, in the case of “Kenya Shell Limited – Versus - Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) KAR 1018” the Court of Appeal pronounced itself to the effect that:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 110.The Applicant has a burden to show the substantial loss they are likely to suffer if no stay is ordered. This is in recognition that both parties have rights; the Applicant to the Appeal which includes the prospects that the Appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination. {See the case of “Absalom Dora –Versus -Turbo Transporters (2013) (eKLR)”}. 111.As F. Gikonyo J stated in the case of:- “Geoffery Muriungi & another – Versus - John Rukunga M’imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased) [2016] eKLR” and which wisdom I am persuaded with: -“…….the undisputed purpose of stay pending appeal is to prevent a successful appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal. I always refer to that eventuality as “reducing the successful appellant into a pious explorer in the judicial process’’. The said state of affairs is what is referred to as “substantial loss’’ within the jurisprudence in the High Court, or “rendering the appeal nugatory’’ within the juridical precincts of the Court of Appeal: and that is the loss which is sought to be prevented by an order for stay of execution pending appeal...”. 112.In the Present Case, the Plaintiff deposes, and the Defendants do not materially dispute, that auctioneers have been dispatched who proclaimed his goods and tools of trade. The proclamation notice, which forms part of the record, reveals that items including television sets, cookers, plastic chairs, assorted mugs, crates of beer and other goods and tools of trade were attached. The total claimed by the auctioneer is a sum of Kenya Shillings Eight Fifty Six Thousand (Kshs. 856,000/=). The Plaintiff further deposes that there is a real and credible threat of demolition of his house and eviction from the business premises. 113.The Plaintiff has operated a bar and restaurant on the suit premises for over two decades. The business is his principal and, it appears, sole source of livelihood. The suit premises contain not only his commercial enterprise but also his residential dwelling. If the attached goods and tools of trade are sold at public auction, his business operations will cease. If eviction follows, he will lose both his business and his home. These consequences — displacement from a long-occupied business and residential premises — are not adequately compensable in damages, particularly given that the Defendants are individuals whose financial capacity to satisfy a judgment for damages has not been established. 114.I am satisfied that the Plaintiff has demonstrated the real prospect of substantial loss that would result unless a stay is granted. This is not a case of speculative or theoretical loss — the enforcement machinery has already been set in motion. The first condition is satisfied. b) Unreasonable delay. 115.That the application has been made without undue delay. The case of “Maitai – Versus - Silas (Suing as the personal representative of the Estate of Douglas Muchui - Deceased) (Miscellaneous Civil Application E047 of 2024) [2024] KEHC 5846 (KLR) (23rd May, 2024) (Ruling) where Edward M. Muriithi J upon finding an application for stay of execution pending appeal meritorious held that:-“.........12.The Court has already found above that the delay in the matter was for a period of 5 months which cannot be termed as manifestly unreasonable..." 116.From the very onset, I find the arguments by the Defendant being a case of splitting hairs. It is rater unreasonable. The ruling of 17th December, 2025 was delivered virtually by this Court. Computation of time is governed by Order 50 of the Civil Procedure Rules, 2010. It should be noted that the High Court December, 2025 vacation commenced from 18th December, 2025 to 19th January, 2026. Nonetheless, the order was uploaded on the Court Tracking System on 21st January, 2026, on which date the Plaintiff filed his Notice of Appeal. The application for stay was filed on 3rd February, 2026, approximately thirteen (13) days after the ruling was made available on the CTS. The Plaintiff explains that this period was spent obtaining certified copies of the proceedings in preparation for the appeal. 117.The Defendants contend that the application was triggered not by the Plaintiff's genuine intention to appeal but by the service of the Notice for Distress for Rent on 29th January, 2026, and that if the Plaintiff had genuinely intended to appeal, he would have filed the stay application immediately upon filing the Notice of Appeal. This argument has a certain factual attraction but it does not survive scrutiny. 118.The Notice of Appeal, annexed as “JS – 2”, is dated 9th December 2025, that is, even before the ruling was uploaded on the CTS. This confirms that the Plaintiff had formed the intention to appeal before the enforcement action was commenced by the Defendants. The fact that he did not file the stay application until 3rd February, 2026 does not in itself constitute unreasonable delay, particularly where he was in the process of obtaining proceedings and the ruling was not made available until 21st January, 2026. An interval of approximately thirteen days between the availability of the ruling and the filing of the stay application cannot by any measure be described as unreasonable delay. 119.Therefore, I am satisfied that the application was filed without unreasonable delay. The second condition is satisfied. c) Security for costs. 120.Finally, the applicant has given security or is ready to give security for due performance of the decree. In the case of:- “Samvir Trustee Limited – Versus -Guardian Bank Limited [2007] eKLR” in that:-“.......the yardstick is for the Court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment..." 121.The Defendants urge the Court to require the Plaintiff to deposit a sum of Kena Shillings Eight Fifty Six thousand (Kshs. 856,000/=) — the full amount of the alleged rent arrears and auctioneer's costs as stated in the proclamation notice. The Plaintiff, on his part, contests the quantum of arrears and contends that the correct amount owed is a sum of Kenya Shillings One Fifty Four Thousand (Kshs. 154,000/=), being the amount that he has been willing and ready to deposit in court. 122.The determination of the exact amount of rent arrears is a matter for the appropriate tribunal or court seized with the substantive dispute. However, for purposes of fixing security in the present application, I must strike a balance that is fair to both parties. The security must be sufficient to protect the Defendants' legitimate interests without being so onerous as to effectively shut out the Plaintiff from the appellate process, which itself would constitute a denial of his constitutional right of access to justice under Article 48 of the Constitution. 123.Having regard to the disputed nature of the rent arrears, the Plaintiff's expressed willingness to pay rent and his deposit of rents in the Magistrate's Court proceedings, and the overall circumstances of this case, I am of the view that an order requiring the Plaintiff to deposit the sum of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000/=) in a joint Escrow bank account in the names of the advocates for the parties as security, within thirty (30) days of this ruling, strikes the appropriate balance. This figure is derived from a conservative assessment of what is likely uncontested as owing, taking into account the Plaintiff's own admission of some arrears, while not adopting the Defendants' higher figure which remains disputed. 124.In addition to the monetary security, and given the nature of the subject matter of the appeal — which concerns the Plaintiff's occupation of the suit premises and his house thereon — I consider it appropriate to maintain the stay of execution to prevent demolition and eviction pending the determination of the appeal, conditional upon the timely deposit of the stated security. The stay of any distress proceedings shall also operate pending the determination of the appeal, to the extent that such proceedings are connected to or would defeat the subject matter of the appeal. ISSUE No. e). Whether the Defendants'/Applicants' Notice of Motion application dated 5th February, 2026 seeking to set aside the interim stay orders has merit. 125.Under this sub – title, having found that the Plaintiff has satisfied the statutory conditions for the grant of stay pending appeal, I now turn to determine whether the Defendants'/Applicants' Notice of Motion application dated 5th February, 2026, seeking to set aside the interim orders issued on 4th February 2026, is merited. 126.The Defendants' application is principally founded upon three grounds. Firstly, that this Court became “functus officio” immediately after delivering the ruling dated 17th December, 2025. Secondly, that the impugned ruling constituted a negative order incapable of being stayed. Thirdly, that the Plaintiff had failed to satisfy the requirements under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010. 127.Nonetheless, without belabouring the point, this Court has already comprehensively considered and determined the first two grounds under Issues (a), (b) and (c) above. It therefore follows that the principal foundation upon which the Defendants seek to set aside the interim stay orders has substantially fallen away. Interim orders are, by their very nature, temporary and preservatory. They are intended to maintain the prevailing position pending the inter partes hearing of an application. Such orders neither determine the substantive rights of the parties nor finally dispose of the issues in controversy. 128.The Court grants interim orders principally to prevent the subject matter from being destroyed or fundamentally altered before all parties have been afforded an opportunity to be heard. This practice is consistent with the constitutional imperatives of fair hearing under Article 50(1) and access to justice under Article 48 of the Constitution. 129.The Defendants have argued that instead of filing a Replying Affidavit opposing the Plaintiff's application, they were entitled to file a substantive application seeking to vacate the interim orders. While there is nothing procedurally improper in filing such an application where sufficient grounds exist, the Court must nevertheless examine whether the grounds advanced justify the setting aside of orders that were issued in the exercise of judicial discretion. 130.In the case of “Mbogo & Another – Versus – Shah [1968] EA 93,” the Court held that an appellate court or, by parity of reasoning, a court invited to revisit its own discretionary orders, should not interfere with the exercise of judicial discretion unless it is shown that the discretion was exercised on wrong principles, that the court misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or that the decision is plainly wrong. 131.In the present case, the interim orders were issued upon the Court being satisfied, on a prima facie basis, that the Plaintiff had established sufficient urgency to warrant temporary preservation pending inter partes hearing. Those orders were expressly stated to be interim in nature. They were never intended to determine the merits of the Plaintiff's application finally. 132.Having now considered all the material placed before the Court, I find no legal basis for vacating the interim orders merely because they were initially granted ex parte. Thus, setting aside the interim orders would serve no useful purpose, particularly where this Court has independently concluded that the substantive application for stay is meritorious. 133.For these reasons, I find that the Notice of Motion application dated 5th February, 2026 by the Defendants'/Applicants' lacks merit. It is therefore dismissed. ISSUE No. f). Who should bear the costs of the two applications. 134.It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”. 135.In the case of:- “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 136.In this case, the issues raised by the parties concern important questions of law touching on jurisdiction, the doctrine of functus officio, the scope of residual jurisdiction and the interpretation of Order 42 Rule 6 of the Civil Procedure Rules, 2010. These are neither frivolous nor vexatious issues. Indeed, both parties have ably assisted the Court through comprehensive submissions and citation of relevant authorities. 137.Although I have ultimately found in favour of the Plaintiff's application and against the Defendants' application, I am persuaded that the issues raised were genuinely arguable and deserving of judicial determination. 138.In those circumstances, and in order not to discourage litigants from approaching the Court on bona fide questions of law, I consider it appropriate to exercise my discretion on costs. In the given circumstances, it is just fair, reasonable and Equitable that each party bears its own costs. DIVSION - IX. Conclusion & findingsPARA 139.Consequently, having caused an indepth analysis to the framed issues herein, the Honourable Court guided by the Principles of Preponderance of Probabilities and the balance of convenience, proceeds to make the following orders. These are:-SUBPARA a.THAT the Notice of Motion application dated 5th February, 2026 by the Defendants be and is hereby dismissed with costs to the Plaintiff/Respondent.SUBPARA b.THAT the Notice of Motion application dated 3rd February, 2026 by the Plaintiff be and is hereby allowed on the following terms:SUBPARA i.There shall be a stay of execution of the ruling delivered by this Court on 17th December, 2025, including the consequential costs order made therein, pending the hearing and final determination of Mombasa Court of Appeal Civil Appeal No. E044 of 2026 or further order of this Court.SUBPARA ii.As a condition of the stay, the Plaintiff/Applicant shall, WITHIN THIRTY (30) DAYS from the date of this Ruling, deposit the sum of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000/=) as security of costs for the due performance of the orders of this Court in an interest-earning a joint Escrow bank account of a reputable Commercial financial institution in the names of Messrs. Mwaniki Gitahi & Partners Advocates and Messrs. Mungai Kamau & Co. Advocates, to abide the outcome of the appeal.SUBPARA iii.In the event that the Plaintiff/Applicant fails to deposit the said security within the period specified in Order (b)(ii) above, the stay of execution shall stand discharged automatically and without further order of this Court.SUBPARA iv.Pending deposit of the said security and pending determination of the appeal, all distress proceedings, eviction, and demolition actions in respect of Plot No. Kwale/Ukunda/3377 that are directly connected to the enforcement of the ruling of 17th December, 2025 shall be stayed.SUBPARA v.The Plaintiff/Applicant shall continue to pay the current ground rent monthly as and when it falls due, and shall deposit any disputed rent arrears in the Magistrate's Court proceedings in MCCC No. E032 of 2026 or into court, pending determination of the amount lawfully due.SUBPARA c.Each party to bear its own costs.IT IS ORDERED ACCORDINGLY. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 8TH DAY OF JULY 2026………………………………HON. MR. JUSTICE L.L NAIKUNI,ENVIRONMENT & LAND COURTATKWALE.Ruling delivered in the presence of: -a. Mr. Daniel Disii, the Court Assistant.b. Mr. Mr. Mummin Advocate holding brief for Mr. Mwaniki Advocate for the Plaintiffs.c. Mr. Mungai Kamau for the 1st and 2nd Defendants.