https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3136

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. 924 OF 2012** ***FORMERLY HCCC No. 193 OF 2012*** **NICHOLAS KUNDU WANYAMA** …………**PLAINTIFF/RESPONDENT** ***-VERSUS-*** **BENSON KOSGEI BETT** …................**1ST DEFENDANT/APPLICANT** **JANE NYONGESA** ……………………….**2ND DEFENDANT** **RULING** 1. The 1st Defendant (hereinafter referred to as **“the Applicant”**) did file Notice of Motion application dated 09.12.2025 (hereinafter referred to as **“the present Application”**) against the Plaintiff’s (hereinafter referred to as **“the Respondent’s**”) Judgement pronounced on the 03.12.2025 for the following Orders; - 2. **THAT this application be certified urgent and dispensed with in the 1st instance.** 3. **THAT pending the hearing and determination of this application inter-partes, there be a stay of execution of the judgement of this Honourable Court delivered on 03.12.2025 and thereafter pending the hearing and determination of this application.** 4. **THAT pending the hearing and determination of the intended Appeal, there be a stay of execution of the Judgement of this Honourable Court delivered on the 03.12.2025.** 5. **THAT the costs of this application be provided for.** 6. The grounds advanced by the Applicant in support of the prayers are contained in the body of the present Applicant and the supporting Affidavit thereof and can be summarized as follows; - 7. The Court herein did render its judgement in this matter on the 03.12.2025. 8. The Applicant herein is aggrieved by the Court’s judgment pronounced on the 03.12.2025 and has since filed a Notice of Appeal under Rule 75 (1) of the Court of Appeal Rules (2010). 9. In the impugned judgement pronounced on the 03.12.2025, the Court did make positive orders including the cancellation of the applicant’s ownership documents in relation to the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12 (KINGONGO)/1940 (hereinafter referred to as “the suit property”) and the registration of the Plaintiff as the lawful owner of the said suit property in place of the Applicant. 10. Consequently, the Applicant did plead that if the impugned judgement and its subsequent Decree are implemented and/or executed, then the ownership of the suit property would change in favour of the Respondent herein and render the entire Appeal nugatory. 11. Further to the above, the Respondent herein would proceed to take possession of the suit property, including collection of rent from the tenants on the suit property, thereby resulting in irreparable loss and harm to the Applicant herein. 12. The Applicant did plead that he had already taken steps to prosecute the intended Appeal, which he was of the view raises arguable points of law, and the Notice of Appeal had been filed without undue delay. 13. The Applicant therefore sought this Court to preserve the subject matter of this suit property, which is the ownership as it is, pending the hearing and determination of the intended Appeal before the Court of Appeal. 14. The Applicant did express his willingness to abide by any orders of the Court as appertains security on costs pending the hearing and determination of the Appeal before the Court of Appeal. 15. The present Application was duly served upon the Respondent as well as the 2nd Defendant. 16. The Respondent did oppose the present Application through a Replying Affidavit dated 16.01.2026 on the following grounds; - 17. The Respondent did term the present application frivolous, vexatious and an abuse of the court process. 18. The Respondent did further state that the filing of a Notice of Appeal is not sufficient ground to stay the execution of any judgment. 19. The Respondent did point out that the present suit had been in court for a period of 28 years and now the Applicant should not keep him away from the fruits of the judgement. 20. The Respondent nevertheless did admit that the Court had jurisdiction to grant the Orders sought upon sufficient and persuasive grounds. 21. The Respondent did insist that execution of the impugned Judgement pronounced on the 03.12.2025 was within the law and part of the due process of resolving the dispute before the Court. 22. The Respondent did plead that the Applicant herein had not demonstrated any substantive loss if the Orders sought in the present Application are not granted. 23. The Respondent was of the view that if the Court is to grant the prayer for stay for execution pending Appeal, the same should be based on the following conditions; - 24. The Applicant should be directed to deposit the ownership documents of the suit property with the Court for safekeeping. 25. The Applicant should also prepare, execute and deposit all documents required for the execution of the impugned Judgement pronounced on the 03.12.2025 with the Court. 26. The Applicant do deposit the full party and party costs which could possibly be taxed in a joint interest earning account. 27. The Respondent did claim that the Applicant had not demonstrated that the suit land hosts tenants, if at all. 28. The Applicant did plead that the present application was purely to delay the implementation and execution of the impugned judgement dated 03.12.2025 as well as the Decree thereof as the Respondent did not have any arguable appeal. 29. The Respondent expressed apprehension that the Applicant intends to dispose the suit land to unsuspecting third parties to frustrate the realization of the fruits of the judgment. 30. The 2nd Defendant was also duly served with the present Application and did express her intention to support the same by filing an Affidavit in Support dated 27.01.2026. 31. In the 2nd Defendant’s Affidavit in support, the following grounds were advanced herein; - 32. The 2nd Respondent did admit that the present application had been filed in good faith and without delay to preserve the dispute between the parties herein. 33. The 2nd Respondent did plead that the intended Appeal was arguable and therefore, it would result in substantial loss and harm if the Decree issued by this Court is not stayed pending the hearing and determination of the intended Appeal. 34. The Applicant upon being reserved by the Respondent’s Replying Affidavit, did file a Supplementary Affidavit dated 27.02.2026 based on the following facts; - 35. First and foremost, the Applicant did plead that the nature of how arguable the intended Appeal is cannot be one of the pre-conditions of granting a Stay of Execution under Order 42 Rule 6 of the Civil Procedure Act. 36. Be as it may, the Applicant did reiterate that he was willing and ready to comply with any Orders of the court as a pre-condition of being granted a Stay of Execution including depositing the ownership documents in Court for safe keeping. 37. The Applicant was of the view that the cancellation of his title to the suit property and registration of the Respondent herein would render the intended Appeal nugatory. 38. The Applicant did explain that he established and constructed a storey building on the suit property which is the only income within his family. 39. The Applicant thus averred that he is in actual possession, occupation and use of the suit property. 40. The Court did direct that the present Application would be canvassed by way of written submissions. 41. The Applicant did file his final submissions dated 27.02.2026 while the Respondent did file his submissions dated 08.04.2026. 42. The Court has perused the present Application in detail, the 2nd Defendant’s affidavit in support, Respondent’s Replying Affidavit and the submissions of the Parties herein. 43. The only issues that arise for determination in the present Application are as follows: - **ISSUE NO.1- WHETHER THE APPLICANT HAS MET THE THRESHHOLD FOR GRANT OF AN ORDER OF STAY OF EXECUTION** **ISSUE NO.2- WHO SHALL BEAR THE COSTS OF THE PRESENT APPLICATION?** 1. Having identified the above issues, the court will now proceed to determine them as follows. **ISSUE NO. 1 - WHETHER THE APPLICANT HAS MET THE THRESHHOLD FOR GRANT OF AN ORDER OF STAY OF EXECUTION?** 1. The first issue before the Court is whether there should be a stay of execution of the judgment delivered on 3rd December, 2025. 2. It is trite law that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute and allow the Applicant pursue his undoubted right of appeal, so that if the appeal is successful, it is not rendered nugatory. 3. However, in doing so, the court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. 4. The jurisdiction of this court to issue a grant of stay of execution is found at Order 42 Rule 6 of the Civil procedure Rules, which provides that: - ***6. Stay in case of appeal [Order 42, rule 6]*** ***(1) 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 subrule (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.*** 1. From the above extract, the conditions to be satisfied before a court can issue the orders of stay are:- 2. Substantial loss may result to the applicant unless the order is made. 3. The application has been made without unreasonable delay, and 4. Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant. 5. Notably, while the court has discretion on whether to grant or refuse an application for stay of execution pending an intended appeal, the Applicant needs to satisfy the Court on the above-mentioned conditions before the stay can be granted. 6. ***Whether substantial loss may result to the applicant unless the order is made?*** 7. The first requirement is that the Applicant must demonstrate that he stands to suffer substantial loss if execution of the judgment is not stayed. 8. Substantial loss has been held to be the core to granting a stay order pending Appeal, and it is assessed by the totality of the consequences the Applicant is likely to suffer if stay of execution is not granted. 9. The centrality of the requirement for substantial loss was set out in the case of **KENYA SHELL LIMITED-VERSUS- KIBIRU & ANOTHER (1986) eKLR**, where the Court of Appeal observed as follows:- ***“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 a rare case when appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the Respondents should be kept out of their money.”*** 1. Similarly, in **JAMES WANGALWA & ANOTHER -VERSUS- AGNES NALIAKA CHESETO (2012) KEHC 1094 (KLR)**, the Court gave the following explanation as regards substantial loss:- ***“11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR.*** ***This is so because execution is a lawful process.*** ***The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma vs Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:*** ***‘…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.’*** ***With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal.”*** 1. The Applicant claims that there is a risk that he will be evicted from the suit property if the orders are not issued, and his appeal will be rendered nugatory. 2. The Applicant did further claim there is a multiple floor house on the suit property from which he earns his source of livelihood through rental income derived thereon based on the Tenancy Agreements adduced before the Court. 3. From a perusal of the proceedings at the hearing, it is clear in the mind of this Court that indeed the Applicant is the person in occupation of the suit property. 4. The occupation of the suit property is based on the development erected on the same. 5. The impugned Judgement pronounced on 03.12.2025 was to the effect that the Applicant’s ownership documents be cancelled and the suit property registered in the name of the Respondent. 6. These Orders contained in the impugned Judgement pronounced on the 03.12.2025 has the effect of taking away the ownership of the Applicant and placing the same in the hands of the Respondent. 7. The legal effect of this action is to place the legal rights of the suit property in the hands of the Respondent including the development on it. 8. Although this Court did find that the Applicant’s registration of the suit property in his name was fraudulent, null and void, it also recognized the right of appeal enshrined in the Constitution based on the right of a fair hearing. 9. As such, this Court is persuaded that the Applicant will suffer substantial loss and/or injury if the Orders issued on the 03.12.2025 are executed before the Applicant exhausts his right to fair hearing before the Court of appeal. 10. For these reasons, it is this court’s finding that the Applicant has met the condition of substantial loss. 11. ***Whether the application has been made without unreasonable delay*** 12. Secondly, it must be shown that the Application for stay must be made without unreasonable delay. 13. In the case of JABER **MOHSEN ALI & ANOTHER-VERSUS- PRISCILLAH BOIT & ANOTHER (2012) eKLR,** the Court explained the concept of undue delay as follows: - ***“11. … The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.”*** 1. The impugned judgment herein was delivered on 03.120.2025 while the Applicant filed the present application on 10.12.2025 just seven days later. 2. In the circumstances, this Court finds that the present application has been made without unreasonable delay. 3. ***Security for the due performance of the decree*** 4. The last consideration is the provision of security for the due performance of the decree. 5. The purpose of security explained in the case of ARUN C. SHARMA -VERSUS- ASHANA RAIKUNDALIA T/A RAIRUNDALIA & CO. ADVOCATES, the Court did state as follows on the issue of security;- ***“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”*** 1. In this present application, Applicant has confirmed his willingness to deposit the original title in court as security for the due performance of the decree, as well as abide by any condition that the Court will give as a pre-condition for granting of the Orders sought in the present Application. 2. The Applicant having expressed his willingness to provide security, then he has essentially met the condition of security for the due performance of the decree. 3. As to the nature and type of security, the Court has considered the various proposals made by the parties herein. 4. One of the risks which the Respondent had pointed out is the threat of the Applicant disposing off the suit property to unsuspecting third parties which in the Court’s view is a genuine threat. 5. To cure this threat, it is only fair that the Applicant does deposit the ownership documents with the Deputy Registrar of this Court to avoid being used to alienate the suit property. 6. As to the aspect of actual costs, it is clear that this is an old matter that had started in the year 2012 or thereabout and parties have been in Court for the last 14 years. 7. Keeping mind that the matter is now proceeding to the Court of Appeal, it is the Court’s expectation that the matter will still remain in the corridors of justice for another two to three years. 8. The Respondent has attached a Party and Party Bill of costs which he seeks this Court to consider towards the amount of security to be deposited in Court as a pre-condition of granting a Stay of execution pending Appeal. 9. Unfortunately, the Party and Party Bill of Costs filed by the Respondent has no nexus with the issue of security of costs. 10. The Court cannot look at the figures therein as a basis of assessing the amount to be deposited as security of costs. 11. Be as it may, keeping in mind the period of time the matter has been in Court since its filing, this Court is of the view that a sum of Kenya Shillings One Million Five Hundred Thousand (KShs.1,500,000/-) is adequate for security of costs in this matter. **ISSUE NO. 2 - WHO SHALL BEAR THE COSTS OF THE PRESENT APPLICATION?** 1. Costs usually follow the event. 2. However, keeping in mind that the Appeal is lodged by the Applicant is yet to be heard and determined, this Court is of the considered view that the costs of this Application should abide the outcome of the main suit. **CONCLUSION** 1. In conclusion, this Court hereby makes the following Orders in determination of the present Application; - 2. **THE NOTICE OF MOTION APPLICATION DATED 09.12.2026 IS MERITED.** 3. **AN ORDER OF STAY OF EXECUTION BE AND IS HEREBY ISSUED AGAINST THE JUDGEMENT AND DECREE ISSUED ON THE 03.12.2025 ON THE FOLLOWING TERMS AND CONDITIONS; -** 4. **THE COUNTY LAND REGISTRAR, UASIN GISHU IS DIRECTED AND/OR ORDERED TO REGISTER AN INHIBITION ON THE PROPERTY KNOWN AS ELDORET MUNICIPALITY BLOCK 21 (KINGONGO)/1940 PENDING THE HEARING AND DETERMINATION OF THE APPEAL BEFORE THE COURT OF APPEAL.** 5. **THE 1ST DEFENDANT/APPLICANT IS ORDERED AND/OR DIRECTED TO DEPOSIT THE OWNERSHIP DOCUMENTS OF THE PROPERTY KNOWN AS ELDORET MUNICIPALITY BLOCK 21 (KINGONGO)/1940 WITH THE DEPUTY REGISTRAR OF THE ENVIRONMENT & LAND COURT, ELDORET WITHIN 14 DAYS FROM THE DATE OF THIS RULING FOR SAFE KEEPING PENDING THE HEARING AND DETERMINATION OF THE APPEAL BEFORE THE COURT OF APPEAL.** 6. **THE 1ST DEFENDANT/APPLICANT WILL FURTHER DEPOSIT A SUM OF KENYA SHILLING ONE MILLION FIVE HUNDRED THOUSAND (KSHS 1,500,000/-) IN COURT AS SECURITY OF COSTS WITHIN 30 DAYS FROM THE DATE OF THIS RULING.** 7. **THE COSTS OF THIS APPLICATION WILL ABIDE THE OUTCOME OF THE PENDING APPEAL BEFORE THE COURT OF APPEAL.** 8. **IN THE EVENT OF NONE COMPLIANCE WITH ANY ONE OF THE CONDITIONS HEREINABOVE, THE ORDER OF STAY OF EXECUTION WILL AUTOMATICALLY LAPSE.** **DATED, SIGNED & DELIVERED** Virtually at **ELDORET ELC** this **19TH DAY OF MAY 2026.** **EMMANUEL.M. WASHE** **JUDGE** **In The Presence Of:** Court Assistant: Mr. Brian Counsel for the 1st Defendant/Applicant: Mr. Kibii Counsel for the Plaintiff/Respondent: Mr. Ogongo Counsel for the 2nd Defendant: Mr. Kiboi.