RULING
1. The 1 st to 7 th Plaintiffs (hereinafter referred to as “the 1 st to 7 th Applicants” ) did file a Notice of Motion Application dated 26.02.2026 against the 1 st and 2 nd Defendants (hereinafter referred to as “the 1 st and 2 nd Respondents” ) seeking for the following Orders; -
A. THAT THE APPLICATION BE CERTIFIED URGENT AND HEARD EX-PARTE ON THE 1 ST INSTANCE.
B. THAT THERE BE AN INTERIM ORDER OF STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THIS APPLICATION.
C. THAT THERE BE STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THE INTENDED APPEAL.
D. COSTS OF THE APPLICATION BE PROVIDED FOR.
2. The facts in support of the prayers hereinabove are outlined in the body of the present Application as well as the Supporting Affidavit of the 1 st Applicant dated 26.02.2026 and can be summarized as follows; -
i) The Court herein did issue an Order dated 18.02.2026 pursuant to a Site Visit on the suit property on the 26.01.2026.
ii) 1 st to 7 th Applicants herein are aggrieved by the Order made by this Court on the 18.02.2026 and have filed a Notice of Appeal expressing their intention to Appeal the same to the Court of Appeal.
iii) The 1 st to 7 th Applicants did further plead that based on the Ruling made on the 18.02.2026, the 1 st Respondent herein did invade the 1 st to 7 th Applicants portions of land and did unlawfully demolish the various structures that were the subject of this proceeding.
iv) The 1 st to 7 th Respondents were of the view that the Order issued on the 18.02.2026 were in contradiction of earlier Orders issued on the 04.12.2015 which did direct that Status Quo as at the time the same were issued should be maintained.
v) The 1 st to 7 th Respondents did plead that the 1 st Respondent’s actions of demolishing and/or destroying the various developments of the portions which they occupy within the suit property was in contempt of the Orders issued on the 04.12.2015.
vi) As a result of the 1 st Respondent’s actions, the 1 st to 7 th Respondents have lost faith in the judicial system due to the manner in which the 1 st Respondent is acting in bad faith and total disregard of the Order issued on the 04.12.2015 and/or the law.
vii) The 1 st to 7 th Applicants therefore sought this Court to grant the prayers in the present Application pending the hearing and determination of their intended Appeal against the Order issued on the 18.02.2026.
3. The present Application was duly served on the 1 st and 2 nd Respondents herein.
4. The 1 st Respondent did oppose the present Application through a Replying Affidavit dated 22.04.2026.
5. In the Replying Affidavit dated 22.04.2026, the 1 st Respondent did plead the following facts in response to the present Application; -
a) The 1 st Respondent did confirm the existence of the Orders issued on the 18.02.2026 by this Court.
b) According to the 1 st Respondent, the Orders issued on the 18.02.2026 were premised on a Site Visit by the Court to ascertain the occupation and/or use of the various portions claimed by the 1 st to 7 th Applicants on the suit property.
c) The 1 st Respondent did state that the Orders issued by the Court on the 18.02.2026 were that those who were in occupation of their portions of land do remain on the same and those not residing or in occupation of their portions do remain outside until the matter is heard and determined.
d) Consequently, the Orders issued on the 18.02.2026 are not capable of being stayed as they did not alter any of the 1 st to 7 th Applicants use and/or occupation of their portions of land within the suit property.
e) The 1 st Respondent did deny the allegation that he was the person responsible for the demolition of any structures being claimed by the 1 st to 7 th Applicants.
f) The 1 st Respondent did further deny the allegation that he was in contempt of the Orders issued by this Court either on the 04.12.2015 or the 18.02.2026.
g) The 1 st Respondent was of the view that the present Application was an attempt by the 1 st to 7 th Applicants to forestall the hearing and determination of the main suit herein to his detriment and that of the 2 nd Respondent.
h) As such, the 1 st Respondent did ask the Court to dismiss the present Application with costs.
6. The 2 nd Respondent herein did not file any documents in opposition to the present application.
7. The 1 st to 7 th Applicants upon service of the 1 st Respondent’s Replying Affidavit did file a Further Affidavit dated 25.05.2026 in response.
8. The 1 st to 7 th Applicants in their Further Affidavit dated 25.05.2026 did state as follows; -
a) The 1 st to 7 th Applicants had a right in law to appeal against any determination by the Court which they are aggrieved with.
b) The 1 st to 7 th Applicants did further deny the allegation that the main suit before the Court had been dragging because of their actions.
c) The 1 st to 7 th Applicants did plead that they had suffered due to the actions of the 1 st Respondent demolishing their structures and/or developments on the portions they occupy through goons.
d) In conclusion, the 1 st to 7 th Applicants sought this Court to grant the prayers sought in the present Application.
9. Upon filing of the Further Affidavit dated 25.05.2026, the Court did direct that the present application would be heard by way of written submissions.
10. The 1 st to 7 th Applicants unfortunately did not file any submissions in support of the present application.
11. On the other hand, the 1 st Respondent did file their written submissions dated 11.06.2026.
12. The Court has therefore carefully perused the present application, the response from the 1 st Respondent, the Further Affidavit by the 1 st to 7 th Applicants as well as the submissions thereof and identifies the following issues for determination; -
ISSUE NO.1- WHAT WERE THE ORDERS ISSUED ON THE 18.02.2026 BY THIS COURT?
ISSUE NO.2- WERE THE ORDERS ISSUED ON THE 18.02.2026 IN CONTRADICTION WITH THE ORDERS ISSUED ON THE 04.12.2015?
ISSUE NO.3- ARE THE 1 ST TO 7 TH APPLICANTS HEREIN ENTITLED TO AN ORDER OF STAY OF EXECUTION OF THE ORDERS ISSUED ON 18.02.2026?
ISSUE NO.4- IS THE PRESENT APPLICATION MERITED OR NOT?
ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
13. The issues for determination having been duly pointed out above, the same will now be discussed below.
ISSUE NO.1- WHAT WERE THE ORDERS ISSUED ON THE 18.02.2026 BY THIS COURT?
14. The first issue for determination is to identify the Orders issued by this Court on the 18.02.2026 which the 1 st to 7 th Applicants are seeking Stay of Execution of from this Court.
15. For avoidance of doubt, the Order issued on the 18.02.2026 in this file was as follows;-
“ 1. THE APPLICATION DATED 18.12.2025 WILL BE HEARD ON 24.03.2026.
2. THE 1 ST AND 2 ND DEFENDANTS ARE GRANTED LEAVE TO FILE ANY RESPONSE TO THE SAID APPLICATION.
3. THE APPLICANT WILL HAVE LEAVE OF 7 DAYS UPON SERVICE OF THE 1 ST AND 2 ND DEFENDANT AND THE INTENDED 3 RD DEFENDANT RESPONSES TO FILE A FURTHER AFFIDAVIT THEREOF.
4. BASED ON THE GROUND VISIT ON THE 26.01.2026, THE COURT HEREBY DIRECTS THAT THE 1 ST AND 3 RD PLAINTIFFS HEREIN BE AND ARE HEREBY PROHIBITED FROM ENTERING, OCCUPYING AND/OR DEALING WITH THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE SUIT.”
16. The above Orders were duly extracted by the Deputy Registrar, Environment and Land Court, Eldoret on the 19.02.2026.
ISSUE NO.2- WERE THE ORDERS ISSUED ON THE 18.02.2026 IN CONTRADICTION WITH THE ORDERS ISSUED ON THE 04.12.2015?
17. The second issue for determination was whether the Orders issued by this Court on the 18.02.2026 are in contradiction with the earlier Orders issued on the 04.12.2015.
18. Once again, for avoidance of doubt, the earlier Orders issued on the 04.12.2015 were as follows; -
“ 1. THAT BY CONSENT THE PARTIES DO COMPLY ORDERS OF THE CIVIL PROCEDURE RULES WITHIN 30 DAYS.
2. THAT THE MATTER BE FAST TRACKED FOR HEARING.
3. THAT THE MATTER BE MENTIONED ON THE 29.01.2016 TO CONFIRM COMPLIANCE.
4. THAT THE STATUS QUO BE MAINTAINED ON THE SUIT PARCEL OF LAND.
5. THAT NO DEALING BY THE LAND REGISTRAR UASIN GISHU COUNTY IN RESPECT OF THE PARCEL OF LAND NAMELY ELDORET/MUNICIPALITY BLOCK 24(KIPKENYO)/176.”
19. The 1 st to 7 th Applicants herein did plead in the present Application that the Orders issued by this Court on the 18.02.2026 were in contradiction with the Orders issued by the same Court on the 04.12.2015.
20. The 1 st Respondent on the other hand did plead that the Orders issued on the 04.12.2015 had in fact lapsed on the 04.12.2016 and therefore were not valid and/or binding on the parties herein.
21. Based on this position, the 1 st Respondent did submit that there was no contradiction of the Orders issued on the 18.02.2026 with those issued on the 04.12.2015.
22. The Court has indeed looked at the two Orders issued on 04.12.2015 and 18.02.2026 carefully.
23. First and foremost, the legality of the Orders issued on the 04.12.2015 has been exhaustively discussed in the Ruling of the Application dated 20.02.2026 which has been earlier delivered.
24. In the Court’s Ruling dated 16.09.2026 of the Application dated 20.02.2026, the Court did make a finding that the Orders issued on the 04.12.2015 did lapse on the 04.12.2016 by effluxion of time as the same were never extended prior to and/or within the lapse of twelve months after their issuance as provided under Order 40 Rule 6 of the Civil Procedure Rules, 2010.
25. In other words, the Orders of 04.12.2015 no longer existed after 04.12.2016 and were not binding on any party in this suit.
26. As such, as at the 18.02.2026 when the Orders which are being sought to be stayed were issued, there were no valid and/or binding Orders that were in existence and specifically those issued on the 04.12.2015 in the file that would have been contradicted by the Orders issued on the 18.02.2026.
27. In essence, this Court hereby makes a finding that the Orders issued on the 18.02.2026 were not in contradiction with the Orders issued on the 04.12.2015.
ISSUE NO.3- ARE THE 1 ST TO 7 TH APPLICANTS HEREIN ENTITLED TO AN ORDER OF STAY OF EXECUTION OF THE ORDERS ISSUED ON 18.02.2026?
28. The third issue for determination is whether or not the 1 st to 7 th Applicants have demonstrated sufficient grounds for an Order of Stay of Execution of the Order issued on the 18.02.2026.
29. An Order For Stay of Execution pending Appeal is premised on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.
30. The provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 in particular state as follows; -
“ (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 a decree or order as may ultimately be binding on him has been given by the applicant.”
31. In addition to the foregoing, the Courts within our jurisdiction have numerously held that there can be no Order of Stay of Execution issued in any negative Order that is issued by a Court of law.
32. Based on the provision outlined hereinabove, and the judicial position held by Courts in Kenya, it is important that the positive Orders issued in the Order of 18.02.2026 are correctly identified to enable this Court consider the issue of Stay of Execution pending appeal as sought by the 1 st to 7 th Applicants herein.
33. A careful perusal of the Order issued on the 18.02.2026 shows that only one Order therein is of a positive nature which is the following; -
“BASED ON THE GROUND VISIT ON THE 26.01.2026, THE COURT HEREBY DIRECTS THAT THE 1 ST AND 3 RD PLAINTIFFS HEREIN BE AND ARE HEREBY PROHIBITED FROM ENTERING, OCCUPYING AND/OR DEALING WITH THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE SUIT.”
34. The interpretation of the above Order issued on the 18.02.2026 was that the 1 st and 3 rd Applicants herein were prohibited from entering, occupying and/or dealing with the suit property herein pending the hearing and determination of the main suit.
35. It is therefore clear that the above Order issued on the 18.02.2026 did only affect the 1 st and 3 rd Applicants herein and not the 2 nd , 4 th , 5 th , 6 th and 7 th Applicants in the present Applicant.
36. As such, this Court hereby makes a finding that the Order issued on the 18.02.2026 did not have any positive Orders against the 2 nd , 4 th , 5 th ,6 th and 7 th Applicants to create a foundation upon which any Order of Stay of Execution against them can be sustained.
37. Consequently therefore, this Court hereby makes a finding that the 2 nd , 4 th ,5 th ,6 th and 7 th Applicants prayer for an Order of Stay of Execution of the Orders issued on the 18.02.2026 is not merited and cannot be issued as sought in their favour.
38. As regards the 1 st and 3 rd Applicants herein, this Court indeed takes note that the Order issued on the 18.02.2026 did issue a positive Order directing them to desist from entering, occupying and/or dealing with the suit property pending the hearing and determination of the main suit.
39. As such, the Court is required to consider the prayer for Stay of Execution pending Appeal in line with the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.
40. In considering an Application For Stay pending Appeal, the following ingredients must be satisfied by the Applicant for the Court to exercise its discretion in his/her favour.
41. The ingredients are whether there is any substantial loss being suffered by the Applicant by the Order issued pending the hearing and determination of the Appeal filed, secondly whether the Applicant did file the Application for Stay of Execution without any unreasonable delay and lastly, whether the Applicant has provided and/or is ready to provide the appropriate security for the due performance of the decree or order that ultimately may be binding on him at the end of the matter.
42. Guided by the above ingredients, the Court will proceed to evaluate the 1 st and 3 rd Applicant’s facts in the present Applicant and decide if indeed they deserve the Orders of Stay of Execution pending Appeal as has been sought for.
INGREDIENT NO.1- SUBSTANCIAL LOSS
43. The first ingredient that the 1 st and 3 rd Applicants are required to demonstrate is that the Order of 18.02.2026 is causing them substantial loss as their intended Appeal is awaiting hearing and determination.
44. The 1 st and 3 rd Applicants did plead that the Orders of 18.02.2026 did have an effect of actually removing them from the suit property and exposing their developments and/or occupation on the same to abuse by the 1 st Respondent.
45. The 1 st and 3 rd Applicants did plead and submit that after the issuance of the Orders dated 18.02.2026, the 1 st Respondent herein together with goons did invade the portions they occupy on the suit property and demolish the developments and/or structures therein to their detriment.
46. The 1 st Respondent on the other hand did deny the allegation that he had invaded the 1 st and 3 rd Applicants portions within the suit property and/or demolished any structures and/or developments that were on the same.
47. During the pendency of the present Application and on the outcry of the 1 st to 7 th Applicants herein, the Court did undertake a second site visit on the 24.04.2026 and did find that indeed the 1 st and 3 rd Applicants structures and/or occupation of their portions had been interfered with.
48. It is therefore clear that upon the issuance of the Orders dated 18.02.2026, there was an interference of the 1 st and 3 rd Defendant’s portions either by the 1 st Respondent and/or other persons not before the Court which resulted to substantial losses to the 1 st and 3 rd Applicants herein.
49. In essence, this Court is satisfied that the Order of 18.02.2026 has caused and/or is likely to cause substantial loss to the 1 st and 3 rd Applicants pending the hearing and determination of their Appeal before the Court of Appeal.
INGREDIENT NO.2- APPLICATION FILED WITHOUT UNREASONABLE DELAY
50. The second ingredient requires the Court to confirm whether the Application For Stay was filed without any unreasonable delay.
51. The Orders which were directed to the 1 st and 3 rd Applicants herein were issued on the 18.02.2026.
52. The present application seeking for Stay of Execution of the said Orders dated 18.02.2026 was filed on the 26.02.2026.
53. The time taken to file the present application from the date of issuance of the Orders being sought to be stayed was less than Fourteen (14) days.
54. This Court therefore makes a finding that the present application was filed promptly and within a reasonable time from the date when the Orders being sought to be stayed were issued.
INGREDIENT NO.3- SECURITY FOR DUE PERFORMANCE OF THE DECREE
55. The third and last ingredient is whether the Applicants have presented and/or committed to provide adequate security for the due performance of the Decree as may ultimately be binding at the end of the Appeal.
56. In this ingredient, the Applicants are required to provide security particularly in terms of the costs that might be incurred by the Respondent upon the completion of the Appeal.
57. The main reason for this ingredient is to ensure that before a party file an Appeal, they are truly convinced that the same is merited and not an effort to keep the successful party from enjoying its judgement.
58. In the present application, the 1 st and 3 rd Applicants did not provide any security and/or make a commitment to comply with any Orders of security that may be pronounced by the Court.
59. Be as it may, the 1 st and 3 rd Applicants having duly successfully demonstrated that they have suffered substantial losses and the present application was filed promptly, the Court will exercise its discretion and still assess the security for costs to be deposited by the 1 st and 3 rd Defendants pending the hearing of their intended appeal at Kenya Shillings Two Hundred Thousand (KShs 200,000/-) only.
ISSUE NO.4- IS THE PRESENT APPLICATION MERITED OR NOT?
60. The fourth issue for determination is whether the present application is merited or not.
61. Based on the findings made in the three ingredients to be considered during the determination of an application for stay of execution pending appeal, this Court hereby makes a finding that the present application is merited and should be allowed.
62. However, it is crucial to point that the Staying of Execution of the Orders issued on the 18.02.2026 should not be construed to mean that the 1 st and 3 rd Respondents have a mandatory injunction directing them to re-enter their portions of land within the suit property.
63. The position of the Court is that since the 1 st and 3 rd Applicants structures and/or occupation have already been tempered with either by the 1 st Respondent and/or any other persons, the Order of Stay of Execution should be interpreted in a manner to prohibit any further trespass by the 1 st Respondent and/or any other persons acting under his command and/or authority from re-entering, reclaiming and/or further interfering with the portions being claimed by the 1 st and 3 rd Applicants pending the hearing and determination of the intended Appeal.
ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
64. Costs usually follow the event.
65. In the present Application, the costs of the present application will abide by the outcome of the main appeal based on the fact that although the 1 st to 7 th Applicants did accuse the 1 st Respondent to have been the one responsible for the destruction of their structures and/or developments, there was no document and/or evidence tendered herein to that effect.
66. It is therefore pre-mature for this Court to condemn the 1 st Respondent to pay costs where the issue of who is responsible for the destruction of the 1 st and 3 rd Applicants structures and/or occupation is yet to be determined.
67. However, for the 2 nd , 4 th , 5 th , 6 th and 7 th Applicants herein, their prayer for an order of stay of execution contained in the present application was not successful and they are condemned to pay costs of the same to the 1 st and 2 nd Respondents therein.
CONCLUSION
68. In conclusion, this Court hereby makes the following Orders in determination of the present Application; -
A. THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 BE AND IS HEREBY ALLOWED IN FAVOUR OF THE 1 ST AND 3 RD APPLICANTS ONLY.
B. THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 ON BEHALF OF THE 2 ND 4 TH ,5 TH ,6 TH AND 7 TH APPLICANTS AGAINST THE 1 ST AND 2 ND RESPONDENTS IS HEREBY DISMISSED WITH COSTS.
C. THAT ORDER NO.4 IN THE RULING AND DECREE ISSUED ON THE 18.02.2026 AGAINST THE 1 ST AND 3 RD APPLICANTS IS HEREBY STAYED PENDING THE HEARING AND DETERMINATION OF THE 1 ST AND 3 RD APPLICANTS APPEAL BEFORE THE COURT OF APPEAL.
D. THE ORDER OF STAY OF EXECUTION IN RELATION TO ORDER NO.4 IN THE RULING AND DECREE ISSUED ON 18.02.2026 SHOULD NOT BE CONSTRUED TO MEAN THAT THE 1 ST AND 3 RD APPLICANTS HEREIN HAVE BEEN GRANTED A MANDATORY INJUNCTION TO RE-ENTER AND/OR RE-OCCUPY THE DISPUTED PORTIONS WITHIN THE SUIT PROPERTY HEREIN.
E. THE STAY OF EXECUTION OF THE ORDER NO.4 IN THE RULING AND DECREE ISSUED ON 18.02.2026 IS TO PROHIBIT THE 1 ST RESPONDENT IN PERSON AND/OR ANY OTHER PERSONS AND/OR ENTITIES ACTING ON THE COMMAND AND INSTRUCTIONS OF THE 1 ST RESPONDENT FROM FURTHER INTERFERING WITH THE 1 ST AND 3 RD APPLICANTS PORTIONS OF LAND WITHIN THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE APPEAL BEFORE THE COURT OF APPEAL.
F. THE ORDER OF STAY OF EXECUTION ISSUED BY THIS COURT AGAINST THE ORDER NO. 4 IN THE RULING AND DECREE ISSUED ON THE 18.02.2026 SHALL GRANTED ON CONDITION THAT THE 1 ST AND 3 RD APPLICANTS HEREIN DEPOSIT A SUM OF KENYA SHILLINGS TWO HUNDRED THOUSAND (KSHS 200,000/-) IN COURT AS SECURITY FOR COSTS WITHIN TWENTY-ONE (21) DAYS FROM THE DATE OF THIS RULING.
G. THE COSTS OF THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 AS AGAINST THE 1 ST AND 3 RD APPLICANTS SHALL ABIDE THE OUTCOME OF THE PENDING APPEAL BEFORE THE COURT OF APPEAL.
IN THE PRESENCE OF:
Court Assistant: Brian
Advocate for 1 st to 7 th Applicants: Mr. Mwaniki - No appearance
Advocate for 1 st Respondent: Mr. Momanyi
Advocate for 2 nd Respondent: Mr. Were – No appearance
ELC.136 of 2015 RULING 17
1. The 1 st to 7 th Plaintiffs (hereinafter referred to as “the 1 st to 7 th Applicants” ) did file a Notice of Motion Application dated 26.02.2026 against the 1 st and 2 nd Defendants (hereinafter referred to as “the 1 st and 2 nd Respondents” ) seeking for the following Orders; -
A. THAT THE APPLICATION BE CERTIFIED URGENT AND HEARD EX-PARTE ON THE 1 ST INSTANCE.
B. THAT THERE BE AN INTERIM ORDER OF STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THIS APPLICATION.
C. THAT THERE BE STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THE INTENDED APPEAL.
D. COSTS OF THE APPLICATION BE PROVIDED FOR.
2. The facts in support of the prayers hereinabove are outlined in the body of the present Application as well as the Supporting Affidavit of the 1 st Applicant dated 26.02.2026 and can be summarized as follows; -
i) The Court herein did issue an Order dated 18.02.2026 pursuant to a Site Visit on the suit property on the 26.01.2026.
ii) 1 st to 7 th Applicants herein are aggrieved by the Order made by this Court on the 18.02.2026 and have filed a Notice of Appeal expressing their intention to Appeal the same to the Court of Appeal.
iii) The 1 st to 7 th Applicants did further plead that based on the Ruling made on the 18.02.2026, the 1 st Respondent herein did invade the 1 st to 7 th Applicants portions of land and did unlawfully demolish the various structures that were the subject of this proceeding.
iv) The 1 st to 7 th Respondents were of the view that the Order issued on the 18.02.2026 were in contradiction of earlier Orders issued on the 04.12.2015 which did direct that Status Quo as at the time the same were issued should be maintained.
v) The 1 st to 7 th Respondents did plead that the 1 st Respondent’s actions of demolishing and/or destroying the various developments of the portions which they occupy within the suit property was in contempt of the Orders issued on the 04.12.2015.
vi) As a result of the 1 st Respondent’s actions, the 1 st to 7 th Respondents have lost faith in the judicial system due to the manner in which the 1 st Respondent is acting in bad faith and total disregard of the Order issued on the 04.12.2015 and/or the law.
vii) The 1 st to 7 th Applicants therefore sought this Court to grant the prayers in the present Application pending the hearing and determination of their intended Appeal against the Order issued on the 18.02.2026.
3. The present Application was duly served on the 1 st and 2 nd Respondents herein.
4. The 1 st Respondent did oppose the present Application through a Replying Affidavit dated 22.04.2026.
5. In the Replying Affidavit dated 22.04.2026, the 1 st Respondent did plead the following facts in response to the present Application; -
a) The 1 st Respondent did confirm the existence of the Orders issued on the 18.02.2026 by this Court.
b) According to the 1 st Respondent, the Orders issued on the 18.02.2026 were premised on a Site Visit by the Court to ascertain the occupation and/or use of the various portions claimed by the 1 st to 7 th Applicants on the suit property.
c) The 1 st Respondent did state that the Orders issued by the Court on the 18.02.2026 were that those who were in occupation of their portions of land do remain on the same and those not residing or in occupation of their portions do remain outside until the matter is heard and determined.
d) Consequently, the Orders issued on the 18.02.2026 are not capable of being stayed as they did not alter any of the 1 st to 7 th Applicants use and/or occupation of their portions of land within the suit property.
e) The 1 st Respondent did deny the allegation that he was the person responsible for the demolition of any structures being claimed by the 1 st to 7 th Applicants.
f) The 1 st Respondent did further deny the allegation that he was in contempt of the Orders issued by this Court either on the 04.12.2015 or the 18.02.2026.
g) The 1 st Respondent was of the view that the present Application was an attempt by the 1 st to 7 th Applicants to forestall the hearing and determination of the main suit herein to his detriment and that of the 2 nd Respondent.
h) As such, the 1 st Respondent did ask the Court to dismiss the present Application with costs.
6. The 2 nd Respondent herein did not file any documents in opposition to the present application.
7. The 1 st to 7 th Applicants upon service of the 1 st Respondent’s Replying Affidavit did file a Further Affidavit dated 25.05.2026 in response.
8. The 1 st to 7 th Applicants in their Further Affidavit dated 25.05.2026 did state as follows; -
a) The 1 st to 7 th Applicants had a right in law to appeal against any determination by the Court which they are aggrieved with.
b) The 1 st to 7 th Applicants did further deny the allegation that the main suit before the Court had been dragging because of their actions.
c) The 1 st to 7 th Applicants did plead that they had suffered due to the actions of the 1 st Respondent demolishing their structures and/or developments on the portions they occupy through goons.
d) In conclusion, the 1 st to 7 th Applicants sought this Court to grant the prayers sought in the present Application.
9. Upon filing of the Further Affidavit dated 25.05.2026, the Court did direct that the present application would be heard by way of written submissions.
10. The 1 st to 7 th Applicants unfortunately did not file any submissions in support of the present application.
11. On the other hand, the 1 st Respondent did file their written submissions dated 11.06.2026.
12. The Court has therefore carefully perused the present application, the response from the 1 st Respondent, the Further Affidavit by the 1 st to 7 th Applicants as well as the submissions thereof and identifies the following issues for determination; -
ISSUE NO.1- WHAT WERE THE ORDERS ISSUED ON THE 18.02.2026 BY THIS COURT?
ISSUE NO.2- WERE THE ORDERS ISSUED ON THE 18.02.2026 IN CONTRADICTION WITH THE ORDERS ISSUED ON THE 04.12.2015?
ISSUE NO.3- ARE THE 1 ST TO 7 TH APPLICANTS HEREIN ENTITLED TO AN ORDER OF STAY OF EXECUTION OF THE ORDERS ISSUED ON 18.02.2026?
ISSUE NO.4- IS THE PRESENT APPLICATION MERITED OR NOT?
ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
13. The issues for determination having been duly pointed out above, the same will now be discussed below.
ISSUE NO.1- WHAT WERE THE ORDERS ISSUED ON THE 18.02.2026 BY THIS COURT?
14. The first issue for determination is to identify the Orders issued by this Court on the 18.02.2026 which the 1 st to 7 th Applicants are seeking Stay of Execution of from this Court.
15. For avoidance of doubt, the Order issued on the 18.02.2026 in this file was as follows;-
“ 1. THE APPLICATION DATED 18.12.2025 WILL BE HEARD ON 24.03.2026.
2. THE 1 ST AND 2 ND DEFENDANTS ARE GRANTED LEAVE TO FILE ANY RESPONSE TO THE SAID APPLICATION.
3. THE APPLICANT WILL HAVE LEAVE OF 7 DAYS UPON SERVICE OF THE 1 ST AND 2 ND DEFENDANT AND THE INTENDED 3 RD DEFENDANT RESPONSES TO FILE A FURTHER AFFIDAVIT THEREOF.
4. BASED ON THE GROUND VISIT ON THE 26.01.2026, THE COURT HEREBY DIRECTS THAT THE 1 ST AND 3 RD PLAINTIFFS HEREIN BE AND ARE HEREBY PROHIBITED FROM ENTERING, OCCUPYING AND/OR DEALING WITH THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE SUIT.”
16. The above Orders were duly extracted by the Deputy Registrar, Environment and Land Court, Eldoret on the 19.02.2026.
ISSUE NO.2- WERE THE ORDERS ISSUED ON THE 18.02.2026 IN CONTRADICTION WITH THE ORDERS ISSUED ON THE 04.12.2015?
17. The second issue for determination was whether the Orders issued by this Court on the 18.02.2026 are in contradiction with the earlier Orders issued on the 04.12.2015.
18. Once again, for avoidance of doubt, the earlier Orders issued on the 04.12.2015 were as follows; -
“ 1. THAT BY CONSENT THE PARTIES DO COMPLY ORDERS OF THE CIVIL PROCEDURE RULES WITHIN 30 DAYS.
2. THAT THE MATTER BE FAST TRACKED FOR HEARING.
3. THAT THE MATTER BE MENTIONED ON THE 29.01.2016 TO CONFIRM COMPLIANCE.
4. THAT THE STATUS QUO BE MAINTAINED ON THE SUIT PARCEL OF LAND.
5. THAT NO DEALING BY THE LAND REGISTRAR UASIN GISHU COUNTY IN RESPECT OF THE PARCEL OF LAND NAMELY ELDORET/MUNICIPALITY BLOCK 24(KIPKENYO)/176.”
19. The 1 st to 7 th Applicants herein did plead in the present Application that the Orders issued by this Court on the 18.02.2026 were in contradiction with the Orders issued by the same Court on the 04.12.2015.
20. The 1 st Respondent on the other hand did plead that the Orders issued on the 04.12.2015 had in fact lapsed on the 04.12.2016 and therefore were not valid and/or binding on the parties herein.
21. Based on this position, the 1 st Respondent did submit that there was no contradiction of the Orders issued on the 18.02.2026 with those issued on the 04.12.2015.
22. The Court has indeed looked at the two Orders issued on 04.12.2015 and 18.02.2026 carefully.
23. First and foremost, the legality of the Orders issued on the 04.12.2015 has been exhaustively discussed in the Ruling of the Application dated 20.02.2026 which has been earlier delivered.
24. In the Court’s Ruling dated 16.09.2026 of the Application dated 20.02.2026, the Court did make a finding that the Orders issued on the 04.12.2015 did lapse on the 04.12.2016 by effluxion of time as the same were never extended prior to and/or within the lapse of twelve months after their issuance as provided under Order 40 Rule 6 of the Civil Procedure Rules, 2010.
25. In other words, the Orders of 04.12.2015 no longer existed after 04.12.2016 and were not binding on any party in this suit.
26. As such, as at the 18.02.2026 when the Orders which are being sought to be stayed were issued, there were no valid and/or binding Orders that were in existence and specifically those issued on the 04.12.2015 in the file that would have been contradicted by the Orders issued on the 18.02.2026.
27. In essence, this Court hereby makes a finding that the Orders issued on the 18.02.2026 were not in contradiction with the Orders issued on the 04.12.2015.
ISSUE NO.3- ARE THE 1 ST TO 7 TH APPLICANTS HEREIN ENTITLED TO AN ORDER OF STAY OF EXECUTION OF THE ORDERS ISSUED ON 18.02.2026?
28. The third issue for determination is whether or not the 1 st to 7 th Applicants have demonstrated sufficient grounds for an Order of Stay of Execution of the Order issued on the 18.02.2026.
29. An Order For Stay of Execution pending Appeal is premised on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.
30. The provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 in particular state as follows; -
“ (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 a decree or order as may ultimately be binding on him has been given by the applicant.”
31. In addition to the foregoing, the Courts within our jurisdiction have numerously held that there can be no Order of Stay of Execution issued in any negative Order that is issued by a Court of law.
32. Based on the provision outlined hereinabove, and the judicial position held by Courts in Kenya, it is important that the positive Orders issued in the Order of 18.02.2026 are correctly identified to enable this Court consider the issue of Stay of Execution pending appeal as sought by the 1 st to 7 th Applicants herein.
33. A careful perusal of the Order issued on the 18.02.2026 shows that only one Order therein is of a positive nature which is the following; -
“BASED ON THE GROUND VISIT ON THE 26.01.2026, THE COURT HEREBY DIRECTS THAT THE 1 ST AND 3 RD PLAINTIFFS HEREIN BE AND ARE HEREBY PROHIBITED FROM ENTERING, OCCUPYING AND/OR DEALING WITH THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE SUIT.”
34. The interpretation of the above Order issued on the 18.02.2026 was that the 1 st and 3 rd Applicants herein were prohibited from entering, occupying and/or dealing with the suit property herein pending the hearing and determination of the main suit.
35. It is therefore clear that the above Order issued on the 18.02.2026 did only affect the 1 st and 3 rd Applicants herein and not the 2 nd , 4 th , 5 th , 6 th and 7 th Applicants in the present Applicant.
36. As such, this Court hereby makes a finding that the Order issued on the 18.02.2026 did not have any positive Orders against the 2 nd , 4 th , 5 th ,6 th and 7 th Applicants to create a foundation upon which any Order of Stay of Execution against them can be sustained.
37. Consequently therefore, this Court hereby makes a finding that the 2 nd , 4 th ,5 th ,6 th and 7 th Applicants prayer for an Order of Stay of Execution of the Orders issued on the 18.02.2026 is not merited and cannot be issued as sought in their favour.
38. As regards the 1 st and 3 rd Applicants herein, this Court indeed takes note that the Order issued on the 18.02.2026 did issue a positive Order directing them to desist from entering, occupying and/or dealing with the suit property pending the hearing and determination of the main suit.
39. As such, the Court is required to consider the prayer for Stay of Execution pending Appeal in line with the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.
40. In considering an Application For Stay pending Appeal, the following ingredients must be satisfied by the Applicant for the Court to exercise its discretion in his/her favour.
41. The ingredients are whether there is any substantial loss being suffered by the Applicant by the Order issued pending the hearing and determination of the Appeal filed, secondly whether the Applicant did file the Application for Stay of Execution without any unreasonable delay and lastly, whether the Applicant has provided and/or is ready to provide the appropriate security for the due performance of the decree or order that ultimately may be binding on him at the end of the matter.
42. Guided by the above ingredients, the Court will proceed to evaluate the 1 st and 3 rd Applicant’s facts in the present Applicant and decide if indeed they deserve the Orders of Stay of Execution pending Appeal as has been sought for.
INGREDIENT NO.1- SUBSTANCIAL LOSS
43. The first ingredient that the 1 st and 3 rd Applicants are required to demonstrate is that the Order of 18.02.2026 is causing them substantial loss as their intended Appeal is awaiting hearing and determination.
44. The 1 st and 3 rd Applicants did plead that the Orders of 18.02.2026 did have an effect of actually removing them from the suit property and exposing their developments and/or occupation on the same to abuse by the 1 st Respondent.
45. The 1 st and 3 rd Applicants did plead and submit that after the issuance of the Orders dated 18.02.2026, the 1 st Respondent herein together with goons did invade the portions they occupy on the suit property and demolish the developments and/or structures therein to their detriment.
46. The 1 st Respondent on the other hand did deny the allegation that he had invaded the 1 st and 3 rd Applicants portions within the suit property and/or demolished any structures and/or developments that were on the same.
47. During the pendency of the present Application and on the outcry of the 1 st to 7 th Applicants herein, the Court did undertake a second site visit on the 24.04.2026 and did find that indeed the 1 st and 3 rd Applicants structures and/or occupation of their portions had been interfered with.
48. It is therefore clear that upon the issuance of the Orders dated 18.02.2026, there was an interference of the 1 st and 3 rd Defendant’s portions either by the 1 st Respondent and/or other persons not before the Court which resulted to substantial losses to the 1 st and 3 rd Applicants herein.
49. In essence, this Court is satisfied that the Order of 18.02.2026 has caused and/or is likely to cause substantial loss to the 1 st and 3 rd Applicants pending the hearing and determination of their Appeal before the Court of Appeal.
INGREDIENT NO.2- APPLICATION FILED WITHOUT UNREASONABLE DELAY
50. The second ingredient requires the Court to confirm whether the Application For Stay was filed without any unreasonable delay.
51. The Orders which were directed to the 1 st and 3 rd Applicants herein were issued on the 18.02.2026.
52. The present application seeking for Stay of Execution of the said Orders dated 18.02.2026 was filed on the 26.02.2026.
53. The time taken to file the present application from the date of issuance of the Orders being sought to be stayed was less than Fourteen (14) days.
54. This Court therefore makes a finding that the present application was filed promptly and within a reasonable time from the date when the Orders being sought to be stayed were issued.
INGREDIENT NO.3- SECURITY FOR DUE PERFORMANCE OF THE DECREE
55. The third and last ingredient is whether the Applicants have presented and/or committed to provide adequate security for the due performance of the Decree as may ultimately be binding at the end of the Appeal.
56. In this ingredient, the Applicants are required to provide security particularly in terms of the costs that might be incurred by the Respondent upon the completion of the Appeal.
57. The main reason for this ingredient is to ensure that before a party file an Appeal, they are truly convinced that the same is merited and not an effort to keep the successful party from enjoying its judgement.
58. In the present application, the 1 st and 3 rd Applicants did not provide any security and/or make a commitment to comply with any Orders of security that may be pronounced by the Court.
59. Be as it may, the 1 st and 3 rd Applicants having duly successfully demonstrated that they have suffered substantial losses and the present application was filed promptly, the Court will exercise its discretion and still assess the security for costs to be deposited by the 1 st and 3 rd Defendants pending the hearing of their intended appeal at Kenya Shillings Two Hundred Thousand (KShs 200,000/-) only.
ISSUE NO.4- IS THE PRESENT APPLICATION MERITED OR NOT?
60. The fourth issue for determination is whether the present application is merited or not.
61. Based on the findings made in the three ingredients to be considered during the determination of an application for stay of execution pending appeal, this Court hereby makes a finding that the present application is merited and should be allowed.
62. However, it is crucial to point that the Staying of Execution of the Orders issued on the 18.02.2026 should not be construed to mean that the 1 st and 3 rd Respondents have a mandatory injunction directing them to re-enter their portions of land within the suit property.
63. The position of the Court is that since the 1 st and 3 rd Applicants structures and/or occupation have already been tempered with either by the 1 st Respondent and/or any other persons, the Order of Stay of Execution should be interpreted in a manner to prohibit any further trespass by the 1 st Respondent and/or any other persons acting under his command and/or authority from re-entering, reclaiming and/or further interfering with the portions being claimed by the 1 st and 3 rd Applicants pending the hearing and determination of the intended Appeal.
ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
64. Costs usually follow the event.
65. In the present Application, the costs of the present application will abide by the outcome of the main appeal based on the fact that although the 1 st to 7 th Applicants did accuse the 1 st Respondent to have been the one responsible for the destruction of their structures and/or developments, there was no document and/or evidence tendered herein to that effect.
66. It is therefore pre-mature for this Court to condemn the 1 st Respondent to pay costs where the issue of who is responsible for the destruction of the 1 st and 3 rd Applicants structures and/or occupation is yet to be determined.
67. However, for the 2 nd , 4 th , 5 th , 6 th and 7 th Applicants herein, their prayer for an order of stay of execution contained in the present application was not successful and they are condemned to pay costs of the same to the 1 st and 2 nd Respondents therein.
CONCLUSION
68. In conclusion, this Court hereby makes the following Orders in determination of the present Application; -
A. THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 BE AND IS HEREBY ALLOWED IN FAVOUR OF THE 1 ST AND 3 RD APPLICANTS ONLY.
B. THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 ON BEHALF OF THE 2 ND 4 TH ,5 TH ,6 TH AND 7 TH APPLICANTS AGAINST THE 1 ST AND 2 ND RESPONDENTS IS HEREBY DISMISSED WITH COSTS.
C. THAT ORDER NO.4 IN THE RULING AND DECREE ISSUED ON THE 18.02.2026 AGAINST THE 1 ST AND 3 RD APPLICANTS IS HEREBY STAYED PENDING THE HEARING AND DETERMINATION OF THE 1 ST AND 3 RD APPLICANTS APPEAL BEFORE THE COURT OF APPEAL.
D. THE ORDER OF STAY OF EXECUTION IN RELATION TO ORDER NO.4 IN THE RULING AND DECREE ISSUED ON 18.02.2026 SHOULD NOT BE CONSTRUED TO MEAN THAT THE 1 ST AND 3 RD APPLICANTS HEREIN HAVE BEEN GRANTED A MANDATORY INJUNCTION TO RE-ENTER AND/OR RE-OCCUPY THE DISPUTED PORTIONS WITHIN THE SUIT PROPERTY HEREIN.
E. THE STAY OF EXECUTION OF THE ORDER NO.4 IN THE RULING AND DECREE ISSUED ON 18.02.2026 IS TO PROHIBIT THE 1 ST RESPONDENT IN PERSON AND/OR ANY OTHER PERSONS AND/OR ENTITIES ACTING ON THE COMMAND AND INSTRUCTIONS OF THE 1 ST RESPONDENT FROM FURTHER INTERFERING WITH THE 1 ST AND 3 RD APPLICANTS PORTIONS OF LAND WITHIN THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE APPEAL BEFORE THE COURT OF APPEAL.
F. THE ORDER OF STAY OF EXECUTION ISSUED BY THIS COURT AGAINST THE ORDER NO. 4 IN THE RULING AND DECREE ISSUED ON THE 18.02.2026 SHALL GRANTED ON CONDITION THAT THE 1 ST AND 3 RD APPLICANTS HEREIN DEPOSIT A SUM OF KENYA SHILLINGS TWO HUNDRED THOUSAND (KSHS 200,000/-) IN COURT AS SECURITY FOR COSTS WITHIN TWENTY-ONE (21) DAYS FROM THE DATE OF THIS RULING.
G. THE COSTS OF THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 AS AGAINST THE 1 ST AND 3 RD APPLICANTS SHALL ABIDE THE OUTCOME OF THE PENDING APPEAL BEFORE THE COURT OF APPEAL.
IN THE PRESENCE OF:
Court Assistant: Brian
Advocate for 1 st to 7 th Applicants: Mr. Mwaniki - No appearance
Advocate for 1 st Respondent: Mr. Momanyi
Advocate for 2 nd Respondent: Mr. Were – No appearance
ELC.136 of 2015 RULING 17