REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC SUIT NO. 522 OF 2015
PHELGONA AKINYI OKWACH
(Suing as the administrator of
the estate of GEORGE OKWACH ABOGE, deceased).......PLAINTIFF
-VERSUS-
MAURICE OURU OTHIWO
alias OWAK OTHIWO.......................................1ST DEFENDANT
JOHN ODIYO ADERO.....................................2ND DEFENDANT
RULING
This is the sixth ruling I am making on this matter. Judgment was entered in the matter on 7th October 2022. In the judgment, the Defendants were ordered to vacate and hand over possession of the suit property, Title No. Kisumu/Dago/250 to the Plaintiff within 90 days from the date of the judgment, in default of which they were to be forcefully evicted and their structures on the suit property demolished. The Defendants applied for a stay of execution of the judgment pending appeal to the Court of Appeal. The stay application was dismissed on 22nd November 2023. The Defendants brought another application by a Notice of Motion dated 27th November 2023 in which the Defendants sought; an order directing the District Land Registrar, Kisumu to appear in court as an expert witness to produce the report dated 2nd October 2023, an order that the judgment delivered on 7th October 2022 in favour of the Plaintiff be reviewed and/or varied, and an order directing the District Land Registrar, Kisumu to rectify the register for Kisumu/Dago/250 (the suit property ) by cancelling the name of the Plaintiff as the proprietor of the property and reverting the same to the name of the 1st Defendant who was the original proprietor thereof. This second application was dismissed with costs in a ruling delivered on 4th July 2024.
The Defendants were dissatisfied with the ruling and filed a notice of intention to appeal the same to the Court of Appeal on 1st August 2024. Based on that notice of appeal, the Defendants brought another application dated 1st August 2024 for a stay of execution of the said ruling/order made on 4th July 2024, and an order for the maintenance of the status quo. This application was also dismissed on 2nd October 2024.
The Defendants brought a fourth application through a Notice of Motion dated 11th October 2024 seeking a stay of proceedings in this suit pending the hearing and determination of an application filed by the Defendants in Nairobi High Court Succession Cause No. 2032 of 2011(hereinafter referred to as “the Nairobi case”). The application was brought on the ground that the Defendants’ application seeking the revocation of the Grant of Letters of Administration issued in the Nairobi case, through which the Plaintiff acquired the suit property, was due for hearing on 14th October 2024, and that the application had high chances of success. The Defendants averred that if the said application succeeded, the title held by the Plaintiff herein would be nullified. The Defendants averred that the Nairobi case would be rendered nugatory should the Plaintiff proceed with the eviction of the Defendants from the suit property. This application was dismissed on 11th December 2024.
The Defendants brought the fifth application by way of a Notice of Motion dated 20th May 2025, seeking a stay of the judgment delivered herein on 7th October 2022 pending the hearing and determination of the intended appeal against the same to the Court of Appeal. This application was also considered by the court and dismissed with costs on 30th September 2025.
After the court dismissed the Defendants'' several applications for stay of execution, the Deputy Registrar, on application by the Plaintiff, issued a notice to the Defendants under Order 22 Rule 18 of the Civil Procedure Rules on 17th December 2024 for the Defendants to appear before the Deputy Registrar on 20th February 2025 and show cause, why they should not be evicted from the suit property and their structures thereon demolished. The Defendants responded to the notice to show cause through a replying affidavit sworn by the 2nd Defendant on 27th February 2025. The Defendants averred that they had filed an appeal to the Court of Appeal against the ruling of the court delivered on 4th July 2024, dismissing their application for stay of execution. The Defendants averred that they had filed an application for stay of execution in the Court of Appeal, and the court had already given directions on the disposal of the application. The Defendants averred that they had also filed proceedings in the High Court in Nairobi seeking a revocation of the Grant of Letters of Administration through which the Plaintiff acquired the suit property. The Defendants averred that the said application made in the High Court had high chances of success.
The Defendants averred that their appeal pending before the Court of Appeal would be rendered nugatory if the Plaintiff was allowed to execute the decree of the court against them. The Defendants averred that the 2nd Defendant lived on the suit property with his family, and he would have nowhere to go if evicted from the property. The Defendants averred that their appeal to the Court of Appeal had high chances of success. The Defendants averred that the Plaintiff would suffer no prejudice if the Defendants were granted a stay of execution of the judgment delivered on 7th October 2022. The Defendants averred that it would serve the interest of justice if the execution of the said judgment were stayed pending the outcome of their appeal to the Court of Appeal.
The Notice to Show Cause was heard on 18th March 2025. The Deputy Registrar considered the Notice to Show Cause together with the replying affidavit by the Defendants and delivered a ruling on 29th April 2025. The Deputy Registrar stated in part as follows in the ruling:
“I have keenly looked at the Replying Affidavit viz-a-viz the NTSC and the fact that no stay of execution has been granted in the Appeal. However, I have noted that directions have been given by the Deputy Registrar of the Court of Appeal on how the Application for Stay in the Appeal will proceed and I am sure that by now, both parties have filed submissions.
Since I do not want to render the decision of the Court of Appeal a nullity and/or an academic exercise, I believe that in the interest of justice, there is need to preserve the subject matter of the appeal.
The NTSC was properly served upon the parties but for the case in the Court of Appeal where directions have been given, I shall have the said NTSC held in abeyance till such time as the Court of Appeal in KISUMU CIVIL APPEAL NO. E018/2024 renders its decision.”
What is now before me is an appeal brought by the Plaintiff against the said decision of the Deputy Registrar. In her grounds of appeal dated 22nd May 2025, the Plaintiff challenged the decision of the Deputy Registrar on the following grounds;
- The Deputy Registrar erred in law and fact by granting a stay of execution against the decree of the court, awaiting the outcome of the proceedings in Kisumu Court of Appeal Civil Application No. E018 of 2025, having correctly found that no order of stay of execution had been granted by the court to the judgment debtors/Defendants.
- The order of stay of execution granted by the Deputy Registrar was beyond the powers conferred upon the Deputy Registrar under Order 49 Rule 5 and 7 (1)(x) of the Civil Procedure Rules, as read with Order 22 Rules 18, 19, and 20 of the same Rules.
- The orders of stay of execution granted by the Deputy Registrar negated the orders issued by the court dismissing the Defendants’ application for stay of the same decree.
- The Deputy Registrar granted an order of stay of execution without an application for such order before her by the Defendants.
- The orders of stay of execution made by the Deputy Registrar were contrary to the provisions of Order 42 Rule 6(1) of the Civil Procedure Rules, which provides that the existence of an appeal does not by itself operate as a stay.
The Plaintiff prayed that the orders of stay of execution granted by the Deputy Registrar in favour of the Defendants on 29th April 2025 be set aside, and in place thereof, the Plaintiff be allowed to execute the decree of the court. The Plaintiff also prayed for the costs of the appeal.
Analysis and Determination
The appeal was argued by way of written submissions. The Plaintiff/Appellant filed submissions dated 15th August 2025, while the Defendants/Respondents filed submissions dated 15th August 2025. I have considered the Notice to Show Cause that was before the Deputy Registrar, the response to the same by the Defendants, the ruling by the Deputy Registrar on the same, and the Plaintiff’s grounds of appeal. I have also considered the submissions by the advocates for the parties and the authorities cited in support of the same.
What this court has been called to determine in the present appeal is whether the Deputy Registrar, Hon. Maureen Nyigei (PM), erred in her decision made on 29th April 2025 to put the Plaintiff’s Notice to Show Cause in abeyance, whether the Plaintiff’s appeal should be allowed, and if so, on what terms. The Notice to Show Cause that led to the impugned ruling was issued pursuant to the provisions of Order 22 Rule 18 of the Civil Procedure Rules, which provides as follows:
“18. (1) Where an application for execution is made—
(a) more than one year after the date of the decree;
(b) against the legal representative of a party to the decree; or
(c) for attachment of salary or allowance of any person under rule 43, the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:…”
The Deputy Registrar dealt with the Notice to Show Cause under the powers conferred upon her by Order 49 Rule 7(1)(b)(x) of the Civil Procedure Rules, which provides as follows:
“7. (1) The Registrar may—
(a) give directions under Order 42 rule 12 and Order 51 rule 8;
(b) hear and determine an application made under the following Orders and rules —
(i)-(ix)…
(x) Order 22 other than under rules 28, and 75;”
I agree with the Plaintiff/Judgment creditor that the effect of the order made by the Deputy Registrar on 29th April 2025 was to grant an order of stay of execution to the Defendants/Judgment debtors against the judgment of the court delivered herein on 7th October 2022, pending the determination of the Kisumu Court of Appeal Civil Application No. E018 of 2024. Under Order 22 Rule 18 of the Civil Procedure Rules, the Plaintiff could not execute the judgment of this court as at 17th December 2024 when the Notice to Show Cause was issued without serving such a notice upon the Defendants, and the Defendants being heard on the same, as the judgment of the court was sought to be executed after 1 year from the date of delivery thereof. By holding the Notice to Show Cause “in abeyance till such time as the Court of Appeal in Kisumu Civil Appeal No. E018/2024(sic) renders its decision”, the Deputy Registrar had granted the Defendants an order of stay of execution of the judgment of the court pending the hearing of the Defendants'' application to the Court of Appeal, as the Plaintiff could not proceed with the execution without the Deputy Registrar hearing and determining the said Notice to Show Cause which she decided to put in a abeyance. From the Defendants’ replying affidavit in response to the Notice to Show Cause, they left no doubt that they were seeking a stay of execution from the Deputy Registrar, notwithstanding that there was no application for such an order before the Deputy Registrar. The Deputy Registrar fell into the Defendants’ trap and ended up granting orders that negated all the previous orders this court had made dismissing the Defendants’ several applications for stay of execution mentioned earlier in the ruling. The Defendants succeeded in obtaining from the Deputy Registrar orders that they failed to get before this court and the Court of Appeal.
I agree with the Plaintiff that the Deputy Registrar acted in excess of her powers under Order 22 Rule 18 of the Civil Procedure Rules as read with Order 49 Rule 7(1)(b)(x) of the same rules. Under Order 22 Rules 18 of the Civil Procedure Rules, the Deputy Registrar is supposed to hear from the judgment debtor, should he/she appear in response to the Notice to Show Cause, why execution should not be levied against him or her. If the Deputy Registrar finds that there is no valid reason why the decree of the court should not be executed, he should order the execution to proceed. However, if the judgment debtor gives a valid reason why the decree should not be executed, the Deputy Registrar should give appropriate orders or directions, including referring the matter to the court. In cases such as the one before me, where the judgment debtors were ordered to vacate and hand over the suit property within 90 days, there may be several valid reasons that could prevent or delay compliance. Without being exhaustive, such reasons could be the existence of an agreement with the judgment creditor to extend the time for handing over possession, negotiations with the judgment creditor to purchase the suit property, the death of the judgment debtor, and occupation of the suit property by parties not under the control of the judgment debtor. The Deputy Registrar is supposed to consider such reasons if given and should make appropriate orders that may include giving the judgment debtor a limited time to move out, in default of which execution shall issue, or referring the parties to the court for further directions in the matter. The Deputy Registrar has no power under Order 22 Rule 18 of the Civil Procedure Rules to grant orders which he is not authorised to grant under Order 49 Rule 7(1)(b) of the Civil Procedure Rules. An order of stay of execution of the judgment of this court can only be granted by this Court or the Court of Appeal. After this court has dismissed an application for a stay of execution, the judgment debtor cannot have another bite at the cherry on a Notice to Show Cause. The Deputy Registrar should not have gotten involved in the matters pending before the Court of Appeal. If the Defendants/judgment debtors had an application or an appeal pending before the Court of Appeal, it was up to them to persuade that court to grant them a stay of execution pending the hearing of that application or an appeal. The Deputy Registrar had no power to grant a stay pending the hearing of an application or an appeal pending before the Court of Appeal, or to use the words of the Deputy Registrar, to put the execution proceedings “in abeyance” pending the outcome of the Court of Appeal proceedings.
I have said enough to show that the Deputy Registrar exercised powers that she did not have. I do not need to consider the other issues raised by the Plaintiff/Judgment creditor in the application. None of the reasons advanced by the Defendants in their submissions justifies the orders given by the Deputy Registrar. The fact that the Defendants had filed an appeal against the ruling of this court delivered on 4th July 2024 did not entitle the Defendants to apply for a stay of execution to the Deputy Registrar pending the hearing of that appeal by the Court of Appeal. While I agree with the Defendants that a party served with a Notice to Show Cause can respond to the same through a replying affidavit, such a party cannot in such an affidavit seek substantive orders from the Deputy Registrar, more so, orders which the Deputy Registrar has no power to grant and which the court had declined to grant. The Defendants argued that the Deputy Registrar did not issue an order of stay of execution but merely “exercised judicial discretion to defer execution in light of a pending appeal”. To defer something is to postpone, suspend, or put it off. I am unable to see the difference between staying execution pending appeal and postponing execution pending appeal.
Conclusion
In conclusion, I find merit in the Plaintiff’s appeal. The order made by the Deputy Registrar on 29th April 2025, putting the Plaintiff’s Notice to Show Cause in abeyance pending the decision of the Court of Appeal in Kisumu Court of Appeal Civil Appeal No. E018 of 2024 (sic) is set aside. The Deputy Registrar shall proceed to consider the Notice to Show Cause on merit and shall make a decision thereon. The Plaintiff/Appellant shall have the costs of the appeal.
Delivered and signed at Kisumu on this 22nd day of October 2025
S. OKONG’O
JUDGE
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:
Mr. Ragot for the Plaintiff
Mr. Sala for the Defendants
Ms. J. Omondi-Court Assistant
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