ENII
1. The application by way of a Notice of Motion dated 3rd March 2026, seeking stay of execution of the judgment and decree dated 29th of January 2026 and all consequential orders arising therefrom is subject of this Ruling.
2. The grounds in support of the application is that the Honourable court ordered a fixing of the boundary between Transmara/Shartuka/450 and Transmara/Shartuka/907 which the Respondent is keen on execution of the said decree and yet a Notice of Appeal dated 6th February 2026 was lodged in court on 19th February 2026 which Appeal raises pertinent issues and if the Appeal succeeds substantial loss will result.
3. The Applicant is ready and willing to abide by any conditions on security suitable security as the Application was made without unreasonable delay.
4. When the matter came up for interparty hearing on 28.04.2026 Mr. Moracha learned counsel for the Respondent conceded to the application for say of execution, rendering the application as unopposed while Mr. Langat argued the said application on the merits of the same.
5. Although the Application is unopposed the court heard the same on its merits and frames the following as issues for determination
(i) Whether or not there is a competent application before court.
(ii) What reliefs ought to issue.
(iii) Who bears the costs of the application?
Analysis and Determination
6. Issue No. 1 on the competence of the Application is a jurisdictional issue that the court has raised suo moto.
7. The Court of Appeal in its decision in the case of Karugi and Others Vs. Kabiya and 3 Others 1983 eKLR stated as follows; -
“the burden on a plaintiff to prove his case remains the same throughout the case even though the burden may become easier to discharge where the matter is not validly defended, the burden of proof is not way lessened because this is heard by way of formal proof…”
8. By parity of reasoning although this application was unopposed, the court shall determine the same on its merits.
9. The stay of execution is sought in respect of a judgment delivered on 29th of January 2026.
10. An Appeal against a decision of the ELC ought to be filed before the Court of Appeal within 14 days, from the said decision.
11. The Notice of Appeal herein was lodged on 19th of February 2026 which is clearly out of time, allowed by the Court of Appeal Rules.
12. Although it is not for this court to query the validity or otherwise of that Notice of Appeal; the jurisdiction to hear a stay of execution Application stems on the existence of a valid Appeal pending before the Court of Appeal.
13. Since it is clear that the Notice of Appeal was filed out of time, it is doubtful as to whether this court can entertain a stay of execution application where their validity of the Appeal is in question.
14. In reaching the above finding I am guided by the decision in Issa Shukue Shalli Vs. Buscar Ltd (2019) (KELLRC) 1874 KLR where Rika J. observed as follows in respect of a Notice of Appeal filed out of time.
“Whereas it is not in the jurisdiction of the trial court to rule on the formal validity of the Notice of Appeal, there is merit in the claimant’s position that the Notice of Appeal was filed outside the time allowed by the Court of Appeal Rules; and was served upon the claimant out of time. It is difficult in the circumstances to agree with the Respondent, that there is a valid Notice of Appeal, and therefore there is an Intended Appeal, capable of prompting the court to go into considering grant of stay of execution.”
15. Guided by the above, the court finds that since the Notice of Appeal was filed out of time, it is incapable of considering this application in which despite being unopposed the same is struck out with no orders as to costs.
Dated at Kilgoris this 7th day of July, 2026
Hon. M.N Mwanyale
Judge
In the presence of
CA – Sylvia/Sandra/Clara
Mr. Moracha for Appellant/Respondent
Mr. Langat for Respondent/Applicant
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