REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. E008 OF 2023
GEOFFREY MWANGANGI MUTETI................................. 1ST PLAINTIFF
JONATHAN PETER KILONZO........................................... 2ND PLAINTIFF
KATUKU NGITE.................................................................... 3RD PLAINTIFF
FRANCIS MUTISYA SILA................................................... 4TH PLAINTIFF
PAUL WAMBUA KYENGO................................................. 5TH PLAINTIFF
HARRISON MUTUA NZIOKA............................................ 6TH PLAINTIFF
JOEL MALELU KIOKO....................................................... 7TH PLAINTIFF
MALILU KIMOTHO............................................................. 8TH PLAINTIFF
KYENZE MUIA...................................................................... 9TH PLAINTIFF
DAVIS KIVIEKO MUTETI................................................. 10TH PLAINTIFF
-VERSUS-
GEOFFREY KITHOME NGEWA......................................1ST DEFENDANT
STEPHEN MWANZIA KITHOME....................................2ND DEFENDANT
GEORGE MAKAU NGEWA.............................................. 3RD DEFENDANT
KIIO NDUNDA & 4 BROTHERS....................................... 4TH DEFENDANT
RULING
1. This is a ruling in respect of a notice of motion dated 5th May, 2025 in which the Plaintiffs/Applicants seek the following orders:
1) Spent
2) Spent
3) That the Defendants’ party and party bill of costs dated 3rd April, 2025 be stayed pending the hearing and determination of the intended appeal.
4) That the costs of this application be provided for.
2. The Applicants state that they have appealed against this court’s ruling of 26th February, 2025 in which their suit was struck out for being res judicata. They state that if the Defendants/Respondents’ bill of costs is taxed, before the appeal is determined, they stand to suffer prejudice. They state that the appeal has high chances of success and that the Respondents will not be prejudiced as they will have a chance to tax their bill in case the Applicants’ appeal does not succeed.
3. The Respondents opposed the Applicants’ application based on replying affidavit sworn on 18th September, 2025. The Respondents contend that the application is incompetent, frivolous, vexatious and devoid of merit. They state that the Applicants have not demonstrated what loss they will suffer if stay is not granted.
4. The Respondents further contend that this court is functus officio having rendered its decision on the suit. They state that they cannot be prevented from enjoying the fruits of the order made in their favour.
5. The parties were directed to file submissions. The Applicants filed their submissions dated 6th October, 2025. The Respondents filed their submissions dated 28th October, 2025.
6. I have carefully considered the Applicants’ application as well as the opposition to the same by the Respondents. I have also considered the submissions by the parties. The only issue for determination is whether the Applicants have met the threshold for grant of stay of execution pending appeal.
7. To begin with the Respondents’ bill of costs is yet to be taxed. There is therefore nothing to stay in this matter. If the Applicants were seeking to stay proceedings in this matter then that would have been a different issue all together. Even if there was anything to be stayed the Applicants have not demonstrated what substantial loss they will suffer if stay of execution is not granted.
8. Even if the bill was taxed and execution followed this will not render the Applicants’ appeal nugatory. The Applicants did not state in their application that if costs are paid to the Respondents, they will not be able to repay the same. The Applicants have raised the inability of the Respondents to repay back costs in their submissions. Submissions are not evidence. If the Applicants intended to raise the issue of the Respondents inability to repay the costs, then they should have done that in the application which will then have given the Respondents an opportunity to demonstrate their ability to repay the costs in case the appeal by the Applicant succeeds. The decision in the case of National Industrial Credit Bank Ltd –vs- Aquinas Francis Wasike & Another (2006) eKLR cannot assist the Applicants in the circumstances.
9. I therefore find that the Applicants’ application is devoid of merit. The same is dismissed with costs to the Respondents.
It is so ordered.
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HON. E. O. OBAGA
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
IN THE PRESENCE OF:
Mr. Asiyo for Mr. Nzavi for Plaintiffs/Applicants
Mr. Kithuka for Defendants/Respondents
Court assistant – Steve Musyoki
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