https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4986

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. 71 OF 2020** **THE TRUSTEES OF THE CATHOLIC** **DIOCESE OF KITALE--------------------------------------PLAINTIFF/APPLICANT** **VERSUS** **SOLMAT ENTERPRISES OF KITALE------------------------- 1ST RESPONDENT** **ISAAC MACHARIA-----------------------------------------------2ND RESPONDENT** **RULING** 1. On **24/3/2026**, the court delivered a ruling dismissing the applicant’s application seeking reinstatement of the suit. Dissatisfied with the ruling, the applicant filed an appeal vide a notice of appeal dated **31/4/2026**. 2. Similarly, the applicant filed this application dated **11/5/2026,** seeking the stay of execution of the decree issued in **Kitale ELC No. 33 of 2021** and all its consequential orders, pending hearing of the application and the appeal. 3. The reasons are presented on the face of the application and in a supporting affidavit of Laureen M. Isiaho, the applicant’s Advocate, sworn on **11/5/2026.** The applicant deposes that the suit land, **2116/250/SEC 11,** also known as **L.R. No. Kitale Municipality Block 3/333**, has been fenced off and may be dealt with adversely, hence rendering appropriate orders of stay necessary, pending the hearing of the application as well as the appeal. 4. The applicant deposes that counsel had been indisposed and was not in a position to file the application earlier. That the intended appeal has merits and a high chance of success; hence, it is necessary for this court to issue stay orders of execution to prevent the appeal from being rendered nugatory. 5. The applicant contends that there is no prejudice likely to be occasioned to the respondents if the court grants the orders sought. The applicant deposes that the application meets the threshold for issuance of the stay orders. 6. Learned counsel for the applicant, as the deponent of the affidavit, avers that the court dismissed the suit without serving a notice to her and rendered the ruling on **24/3/2026.** Copies of the application dated **25/11/2025**, the impugned ruling, the notice of appeal and photographs showing the fence on the suit land are annexed and marked as **A-D.** 7. Further, learned counsel deposes that she has been indisposed and admitted to hospital severally; hence she could not have filed the application earlier. 8. Directions issued by the court consolidating this suit with **Kitale ELC** **No. 33 of 2021** have been attached as annexure marked **E**, while the memorandum of appeal is marked **F.** Again, the deponent deposes that justice, fairness, equity and the balance of convenience tilt towards allowing the application as prayed. 9. Service on the respondents is evidenced by the return of service on record dated **14/5/2026**, **16/6/2026** and **3/7/2026.** However**,** the respondents did not attend court nor file any responses to the application. 10. On **13/7/2026**, the court granted a stay pending the determination of this application. Therefore, what is pending for determination is prayer **(c)** on whether to grant stay orders, pending the appeal. 11. **Order 42 Rule 6** of the Civil Procedure Rules requires an applicant seeking a stay of execution pending appeal to demonstrate that: 12. *Substantial loss may result to the applicant unless the order is made.* 13. *The application is made without unreasonable delay.* 14. *Security for the due performance of such decree or order as may ultimately be binding on him.* 15. The sole purpose of a stay of execution is to preserve the status quo pending the hearing of an appeal. In ***RWW -vs- EKW [2019] eKLR,*** the court observed that: *“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 not rendered nugatory.”* 16. *In* ***Butt -vs- Rent Restriction Tribunal [1979] eKLR,*** the Court of Appeal observed that the grant or denial of stay orders is at the discretion of the court. The court should exercise such discretion to prevent an appeal from being rendered nugatory; stay orders should not be denied because better remedies exist, and that a court must consider the special circumstances and order security for costs. The court also held that failure to provide the security as ordered may result in a lapse of the stay orders. 17. Substantial loss is a qualitative concept rather than a mathematical formula, one that is of real value and not merely nominal, as held by Ogolla, J in ***Tropical Commodities Suppliers Ltd & Others -vs- International Credit Bank Ltd (in liquidation) [2004] 2 EA 331***. Further, in ***James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR***, the court held that execution is a lawful process and does not amount to substantial loss. 18. An applicant must demonstrate how an execution will create a state of affairs that will irreparably affect or negate the very essential core of it as the successful party in the appeal. 19. Turning to the application before me, I note that there is no affidavit evidence challenging the averments by the applicant. This is in spite of the court making an order that the respondents be served physically and return of service filed. The court’s inclination is to allow the application in the circumstances of the case, which I hereby do. 20. The application dated **11/5/2026** is thus allowed with no orders as to costs given that no response was filed thereto. 21. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **31st** day of **July 2026.** **In the presence of:** Court Assistant: Matui/Nancy Ms. Isiaho for the 1st plaintiff/applicant N/A for the 1st defendant N/A for the 2nd defendant  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**