https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3259

Tsalia & another v Munanga & another (Enviromental and Land Originating Summons 110 of 2019) [2026] KEELC 3259 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3259 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Enviromental and Land Originating Summons 110 of 2019 A Nyukuri, J May 20, 2026 Between Saul Gabriel Tsalia 1st Plaintiff Tom Tsalia Mboya 2nd Plaintiff and Samson Otatwa Munanga 1st Defendant Grace Khebali Munanga 2nd Defendant Ruling Introduction 1.This ruling is in regard to three applications filed by the plaintiffs. They are dated 13th June 2024; 2nd March 2025 and 30th April 2025 respectively. Application dated 13th June 2025 2.In the application dated 13th June 2025, the plaintiffs sought stay of execution of the judgment delivered herein and stay of assessment of the bill of costs dated 18th April 2024 pending hearing and determination of Kakamega HCC Succession Cause No. 215 OF 2023. They also sought costs. 3.The application was supported by the affidavit sworn by the applicants dated 13th June 2024. The applicants’ case was that they have lodged an objection in Kakamega High Court Succession Cause No. 215 of 2003 that involves the same parties and the same subject matter and that the same is pending ruling. That the respondents are on the verge of execution and the objection is meritorious. That the respondents will not be prejudiced because they are not in occupation of the suit property. 4.The application was opposed. The 1st respondent filed replying affidavit dated 26th July 2024. He stated that this suit was heard and judgment delivered on 27th July 2024 and that the applicants’ claim of having acquired 4 acres from parcel No. Butsotso/Indangalasia/349 was dismissed. That the applicants sought to review the judgment vide their application dated 2nd September 2021 and that vide a ruling dated 18/10/2022, their application was dismissed. 5.Further that the instant case is fully concluded and no appeal is pending. That on that basis, they have filed their bill of costs. That they are not aware of any pending ruling in Succession case No. 215 of 2003 and that what is pending is confirmation of grant in respect of the suit property. That therefore the instant application lacks merit. Application dated 2nd March 2025 6.In the application dated 2nd March 2025, the plaintiffs sought for orders that they be granted leave to liquidate the costs of Kshs. 120, 000/= by monthly instalments of Kshs. 3, 000/=. They stated in their supporting affidavit that the respondents have already instructed auctioneers to execute in respect of costs which they consented at Kshs. 120, 000/= to be paid in 30 days. That they are willing to liquidate the said costs by monthly instalments, but that the 1st applicant is paralyzed. That there is a risk of him being committed to civil jail. 7.The application was opposed. Mr. Javan J.O. Mukavale, counsel for the respondents filed replying affidavit dated 26th May 2026. He stated that the applicants have held the respondents in court since 2019 with several applications which have been dismissed, prejudicing the respondent. 8.He maintained that if the prayer sought is allowed, it would take the applicants 3 and half years to settle the costs which is unreasonable. That the applicants are already in breach of the orders of 3rd April 2025, where the court ordered them to pay a sum of Kshs. 60, 000/=. That the applicants do not deserve the orders sought. Application dated 30th April 2025 9.In the application dated 30th April 2025, the applicants sought orders that the orders made by the court on 3rd April 2025 be set aside, varied or discharged. The basis for the prayer was that the court ordered the applicants to pay Kshs. 60, 000/= which was contrary to the applicants’ prayer. That the applicants are willing and ready to settle the costs, but that if the ruling is left as it is, the applicants will suffer irreparable loss and damage. 10.The application was opposed. The respondents filed grounds of opposition dated 13th October 2025. They stated that the application was an abuse of the court process as the applicants had so far filed three applications. That the applicants have not come to court with clean hands as they failed to comply with the orders to pay Kshs. 60, 000/= to the respondents in 30 days as ordered by court and have not even attempted to pay the proposed Khs. 3, 000/=. 11.Parties filed submissions in regard to the applications herein. The applicants’ submissions are dated 13th May 2025 while the respondents’ submissions are dated 14th October 2025; both of which the court has duly considered. Analysis and determination 12.The only issue that arises for this court’s determination is whether the applicants deserve the orders sought in the three applications. 13.Regarding the prayer for stay of execution pending ruling in Kakamega High Court Succession Cause No. 215 of 2003, the applicant did not provide the nexus between the judgment herein and the said succession matter. Stay of execution of a decision of court may be ordered where the decision is in contention either through appeal or review. Order 42 rule 6 of the Civil Procedure Rules provides for stay pending appeal. 14.In the instant case there is no appeal against the judgment or the taxation of costs and therefore the prayer for stay is misplaced, unjustified, lacks foundation and is hereby declined. 15.Regarding the prayer for leave to settle costs by monthly instalments of Kshs. 3, 000/=, I agree with counsel for the respondents that such an order would be unreasonable since it will take 40 months for the applicants to settle the costs. The delay of 40 months will be a violation of the respondents’ right to access to justice guaranteed under Article 48 of the Constitution of Kenya. In any event, no good faith has been shown by the applicants who have never paid a single cent towards the costs, not even the Kshs. 3, 000/= which they proposed. In the premises, that prayer is rejected. 16.On setting aside orders of 3rd April 2026 that gave conditional stay requiring the applicant to pay a sum of Kshs. 60, 000/= in 30 days, the said orders were interim in nature. The order for stay of execution was granted pending hearing of the application dated 2nd March 2025 on condition that the applicants pay the sum of Kshs. 60, 000/= in 30 days. 17.Since there was default of the order dated 3rd April 2026, and the application dated 2nd March 2025 has been heard inter partes, the prayer for setting aside the said orders is overtaken by events as the court ordered that in the event of default, execution to issue. Therefore, the application dated 30th April 2025 is overtaken by events and the orders sought therein cannot be granted. 18.Ultimately, I find no merit in the applications dated 13th June 2024; 2nd March 2025 and 30th April 2025, which I hereby dismiss with costs to the respondents. 19.It is so ordered DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY, 2026A. NYUKURIJUDGEIn the presence of;The 2nd applicant in personMr. Mukavale J. for the respondentsCourt Assistant: Delphine