https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3994

Ngalaa v Limakori & another (Environment and Land Appeal E002 of 2026) [2026] KEELC 3994 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 3994 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Appeal E002 of 2026 CK Nzili, J June 29, 2026 Between William Napailwanga Ngalaa Appellant and Wilson Charito Limakori 1st Respondent Silas Masai 2nd Respondent Ruling 1.The court, by an application dated 2/4/2026, is asked to stay the execution of the judgment in Kapenguria PMC Land Case No E030 of 2024, which was delivered on 18/12/2025. The reasons are on the face of the application and in a supporting affidavit of William Ngalaa, sworn on 2/4/2026. It is deposed that the appellant bought 12.5 acres from one Masai Chepoton Mutios, which he claims in the lower court, as per the annexed title deed and plaint marked WNN-1(a) and (b). 2.The applicant deposes that the respondents have purported to subdivide the suit land and have issued title deeds to themselves as per copies of the title deeds annexed as WNN-2(a) and (b). 3.The applicant deposes that before the matter could be heard and determined, the respondents filed an application for his parcel of land to be surveyed to give effect to the 1st respondent’s title. 4.The applicant deposes that it is the same title that he is seeking to have cancelled. Despite his replying affidavit opposing the application, the same was allowed by a ruling dated 18/12/2025. The applicant’s replying affidavit and ruling are attached as annexures marked WNN-(3), (4), and (5). 5.The applicant deposes that his application for stay, attached as annexure marked WNN-(6), was also dismissed by a ruling dated 12/3/2026, paving the way for a survey exercise scheduled for 15/4/2026, which, if allowed to happen, will render his appeal nugatory. 6.The application is opposed through a replying affidavit of Wilson Charito Limakori, sworn on 12/5/2026. The 1st respondent admits that he has a defence and counterclaim attached as WCL-(1), and that a boundary dispute had been lodged with the Land Registrar over parcel No. West Pokot/Keringet “A”/2259 and 2256, as per annexures marked WCL-2(a), (b), and (c), where the applicant declined to adhere to the notices from the Land Registrar and instead filed the suit at the lower court, which is purely a boundary dispute. 7.The respondent admits that his defence at the lower court is that the applicant is only entitled to 8 acres and not the extra 2 acres which he has encroached upon. 8.The respondents depose that parcel No. West Pokot/Keringet “A”/2259 measures 2.0 Ha as per the title deed issued on 1/12/1999, while title No. West Pokot/Keringet “A”/2256 measuring 4.45 Ha, and that if the appellant has any claim, he should lay it against the owner of the latter title deed. 9.The respondents admit filing the application seeking a surveyor to visit the suit land and determine the boundary and the extent of the encroachment, if any, which was allowed, and the exercise and its outcome, once conducted, the appellant will have a chance to challenge the report at the main hearing. 10.Further, the respondents deny that the exercise seeks to subdivide the two parcels of land or interfere with the same, but is only intended to help the trial court adjudicate the issue in dispute. The respondents depose that the applicant has failed to demonstrate a substantial loss likely to be occasioned by him. Further, the applicant has not offered security for the due performance of the decree as required by law. The 1st respondent terms the application as misplaced, an abuse of the court process, and lacking merit. 11.The applicant relies on oral submissions by Miss. Arunga, advocate, made on 14/5/2026. It was submitted that the current application was filed three weeks after the dismissal of the application for a stay at the lower court. 12.On substantial loss, the appellant submits that his claim is for 12 acres and that if the survey exercise takes place, he will be deprived of 3 acres of land which he has developed substantially. 13.The respondents relied on written submissions dated 13/5/2026, stating that the applicant has not satisfied Order 42 Rule 6(1) of the Civil Procedure Rules. Reliance is placed on Jaber Mohsen Ali & Another -vs- Priscilla Boit & Another, Eldoret ELC No. 200 of 2012, and Limangura Nguramuk -vs- Joseph Kilekwang, Kitale ELC No. E027 of 2023. 14.A party seeking a stay of execution has to file the application without unreasonable or unexplained delay, show that there will be substantial loss in the absence of a stay order, and lastly, offer security for the due realization of the decree should the appeal not succeed. 15.The law has not defined what minimum or maximum delay is. It all depends on the circumstances of each case. The court is faced with a delay of three weeks. There is no explanation for the same. The applicant came to court only 12 days before the site visit date, which was almost a month after the ruling of 12/3/2026. 16.Substantial loss is the cornerstone of stay. Substantial loss is what is sought to be prevented. In RWW -vs- EKW [2019] KEHC 6523 [KLR], the court held that the purpose of a stay pending appeal is to preserve the subject matter in dispute, so that the right of the appellant who is exercising the undoubted right of appeal is safeguarded, and if the appeal is successful, is not rendered nugatory. 17.The right of the appellant must, however, be weighed against that of the successful litigant. The court, in doing so, ensures that no party suffers prejudice that cannot be compensated by way of costs. 18.Security, on the other hand, is mandatory as held in Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR, and Gianfranco Manenti & another -vs- Amaco Assurance Company Ltd [2019] KEHC 7586 KLR. 19.The court has carefully looked at the pleadings by the two parties at the lower court, and the ruling delivered on 18/12/2025. An arguable appeal, as held in Stanley Kangethe Kinyanjui -vs- Tony Ketter & others (2013) eKLR, must not succeed, but is one which ought to be argued fully before the court and one which is not frivolous. 20.The issues raised by the two parties, in their respective pleadings, in my view, transcend a boundary dispute. Paragraph 10 of the plaint raises issues of illegality and fraud in the manner in which the 2nd respondent obtained and transferred title to the 1st respondent for land previously bought and occupied by the applicant. The applicant seeks, in the lower court, cancellation of the title held by the 1st respondent and a permanent injunction. 21.In the statement of defence and counterclaim dated 9/7/2025, the issue of fraud or illegality is denied by the appellant. The counterclaim raises issues of encroachment on the 1st respondent’s land by the applicant. Other than prayer number 1 on the boundary determination, the 1st respondent prays for eviction, a permanent injunction, and a declaration that the applicant is only entitled to 8 acres. 22.Therefore, I find the appeal before this court raises arguable issues which, if the orders granted in the ruling are implemented, will render the appeal futile or useless. 23.Nugatory depends on whether what is sought to be stayed, if allowed to happen, is reversible, and if not reversible, whether damages can reasonably compensate the party aggrieved. In determining whether or not an appeal will be rendered nugatory, the court, as held in Jambo East Africa Limited & another -vs- Harit Sheth Advocates & 6 others [2022] KECA 480 (KLR), must consider the conflicting claims of both parties, and each case must be considered on its own merits. 24.Looking at the facts herein, the substratum of the appeal will be affected, negated, and/or interfered with if the lower court order is effected before the suit is heard and determined on the merits. See James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR. 25.The upshot is that I allow the application. The stay orders to last for 6 months. 26.Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 29TH DAY OF JUNE 2026.HON. C.K. NZILIJUDGE, ELC KITALE.In the presence of:Court Assistant - DennisMiss Chebii for Chebet for the respondent presentMiss Arunga for the appellant absent