ENII
1. The Ruling is in respect of the Notice of Motion application dated 17.04.2026 seeking the substantive relief of a stay of execution of the judgment and decree dated 16th of April 2026 in Kilgoris ELC No. E027/2026 between Simeon Tiepon and Another Vs. Enock Tiepon and 5 Others.
2. The grounds in respect of the application being interalia that
(i) The Appellant had filed an appeal against the said judgment, and that unless the stay of execution is granted the Respondent may proceed with execution thereby rendering the Appeal nugatory.
(ii) Appellants stand to suffer substantial loss if execution proceeds before Appeal is heard and determined.
(iii) Application has been made without unreasonable delay, as there is likelihood of subdivision, of the suit parcel, and disposing off the same.
(iv) Appeal is arguable and has merit and is overwhelming.
3. The Application is further supported by the supporting affidavit of Leteipa Tuyia the Advocate in conduct of the Appeal herein, who reiterates the grounds in support of the application, and has annexed a copy of the judgment dated 16.04.2026 as well as a Memorandum of Appeal.
4. The Application is opposed by the Replying Affidavit of Simon Lerionka Tiepon who swore the same with authority from the 2nd Respondent and deposes as herefollows; -
(i) That the Appellants counter-claim was dismissed hence no orders of stay of execution can be issued in respect of negative order.
(ii) The Appellants are already trespassers and their continued stay on the property is to perpetuate a trespass.
(iii) That the filing of an Appeal does not gurantee an automatic stay of execution.
5. The Respondent has exhibited copies of Ruling dated 19.02.2026, copies of Occurrence Book, photograph certificate of official searches, copy of ruling dated 18.12.2025 copy of title deeds and copy of Judgment.
6. Oral submissions in respect of the Application were heard, and have been considered.
7. Mr. Tuyia for the Applicants submitted that his clients would suffer substantial loss, and Respondent will not be prejudiced as they were in occupation of their own portion on the land, while the orders were to evict them. He relied on the decision in Butt Vs. Rent Restriction Tribunal as well as Kenya Shell Ltd Vs. Benjamin Karuga Kibiru and urged the court to allow the application.
8. On his part Mr. Ochwangi learned counsel for the Respondent, placed reliance on the Replying affidavit, and submitted that the Applicants are trespassers by virtue of the trial court that trespassers cannot seek for stay of execution, as the same will deprive the Respondents their peaceful existence on the land. applicants have their own parcels registered in the name of their parents.
9. Applicants have not demonstrated substantial loss and have not satisfied the conditions of Order 42 Rule 6, as the affidavit was sworn by an Advocate in contested issues hence no prejudice has been demonstrated, and urged the court to dismiss the application.
Issues for determination
10. Having analyzed the application and the rival submissions, and considered the law, the court frames the issue for determination as to
(i) Whether or not the application is merited?
(ii) What reliefs ought to issue.
(iii) Who bears the costs of the application.
Analysis and determination
11. A preliminary issue as observed by the court and raised in the Respondent’s submissions, is that the application herein is supported by the affidavit of the Advocate for the parties, Mr. Ochwangi submitted that the general rule is that an Advocate does not swear an affidavit on contested issues, though he did not cite any authority to that effect, the court agrees with the said submissions to be the general position of the law as was held recently restated by the Court of Appeal.
12. In Ibrahim and Another Vs. Mulisa and Another (Civil Application E058/2024) where the court observed interalia as follows; -
“The general rule is that advocates, should not swear affidavits, in contested matters. Where the client is available to swear to the disputed facts, the depositions in the affidavit of the advocate, may amount to hearsay unless their sources and grounds for belief are disclosed. More importantly an Advocate who swear an affidavit in contested matter potentially exposes himself to playing the role of both advocate and witness should they be called upon to take the witness stand in order to be cross-examined on such affidavits….”
13. This court in Pattni Vs. Ali and Others IEA 339 (2005) KLR 269, held that “whereas it is right that advocates should not swear affidavits on behalf of their clients when clients are readily available to do so as this accords with the spirit of best evidence rule and in view of the provisions of order 18 Rule 2, with common sense and it would be embarrassing to apply those provisions to an advocate who may have to relinquish his role as one to become a witness…”
14. Similar remarks on this issue were made in Turea Limited T/A Dr. Mattress Vs. Mohammed (Civil Application E030/2022 (2022) KECA 1271 (KCR) “on the affidavit filed in support of the application that was sworn by the Applicants advocates under Rule of the Advocates Practice Rules, it is not the hear swearing of an affidavit by an Advocate that renders it defective, but the swearing of an affidavit on contentious issues of which he or she has not knowledge of…”
15. In light of the above, the affidavit sworn by Mr. Leteipa Tuyia advocate on contentious issues of substantial loss and prejudice and on the occupation of the Appellants/Applicants on a portion of the suit property is defective. It follows therefrom that the affidavit supporting the application is defective and must be struck out.
16. The application is thus not supported by any affidavit as required under the law, hence the issues of substantial loss and prejudice which are the principles to be considered for stay of execution under Order 42 Rule 6, have not been addressed and demonstrated.
17. The application therefore has not met the threshold for grant of the orders of stay of execution having not demonstrated substantial loss and prejudice and the same is hereby dismissed with costs.
Dated at Kilgoris this 20th day of July, 2026
Hon. M.N Mwanyale
Judge
In the presence of
CA – Sylvia/Clara
Mr. Tuyia for the Applicant
Mr. Ochwangi for the Respondent
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