1. Judgment was delivered in this matter on 11 th March 2026 as follows:
a) It is hereby declared that Sabina Kemunto Barasa (deceased), and not the Plaintiff, was entitled to the parcel of land known as Kitaru Settlement Scheme/13.
b) It is hereby declared that the subdivision of the parcel of land known as Kitaru Settlement Scheme/13 into Kitaru Settlement Scheme/134, 135, 136, 137 and 138 was irregular, unlawful, illegal, null and void.
c) Entries number 2 to 12 in Part B - Proprietorship Section of the register of Kitaru Settlement Scheme/13 are hereby cancelled.
d) The registered proprietor of the parcel of land known as Kitaru Settlement Scheme/13 remains the Settlement Fund Trustees in terms of entry number 1 in Part B - Proprietorship Section of the register.
e) In view of the charge in favour of the Settlement Fund Trustees registered as entry number 1 in Part C - Encumbrances Section, the estate of Sabina Kemunto Barasa (deceased) to be registered as proprietor of the parcel of land known as Kitaru Settlement Scheme/13 upon a valid discharge of charge being registered.
f) Considering the outcome, each party shall bear own costs of the suit .
2. Subsequently, on 22 nd June 2026, the Plaintiff filed Notice of Motion dated 22 nd June 2026, which is the subject of this ruling. The following orders are sought in the application:
1. The Instant Application be certified urgent and same be heard Ex-parte in the first instance.
2. Pending the hearing and determination of the instant Application, the Honourable court be pleased to grant an interim order of stay of execution of judgement and/or Decree issued on 11 th day of March 2026 together with all consequential orders arising therefrom and/or attendant thereto.
3. The Honourable court be pleased to grant an order of stay of execution and/or enforcement of the Judgement and decree issued on 11 th day of March 2026 together with consequential orders arising therefrom and/or attendant Pending the hearing and determination of the appeal in terms of Civil appeal No. E125 of 2026 filed at the Court of appeal at Kisumu.
4. Costs of this Application do abide the Appeal.
5. Such other and/or further orders as this Honourable court may deem just and expedient be granted .
3. The application is based on the grounds listed on its face and is supported by an affidavit sworn by the Plaintiff. She deposed that she was aggrieved by the judgment and decree and that she had lodged an appeal against it. She added that she would suffer substantial loss and the appeal would be rendered nugatory if stay was not granted since the suit property would be registered in the name of Sabina Kemunto Barasa (deceased).
4. The First to Third Defendants opposed the application through a replying affidavit sworn by the Second Defendant. He deposed that the Plaintiff was guilty of laches and that there was nothing to stay since the judgment had been executed. He added that the application did not meet the requirements for granting stay pending appeal and that the Plaintiff would not suffer substantial loss since the suit property is home to several family members.
5. Although evidence of service was availed, the Fourth and Fifth Defendants neither attended Court nor participated in the hearing of the application.
6. The Plaintiff filed a supplementary affidavit in which she deposed that the judgment had not been executed and that the suit property was still registered in her name and not the name of Sabina Kemunto Barasa (deceased).
7. The application was canvassed through written submissions. The Plaintiff filed submissions dated 10 th August 2026 while the First to Third Defendants filed submissions dated 12 th August 2026. The Fourth and Fifth Defendants did not file any submissions.
8. I have carefully considered the application, the affidavits and the submissions. The sole issue for determination is whether stay of execution pending appeal should be granted.
9. The Court’s jurisdiction to grant stay of execution pending hearing and determination of an appeal is circumscribed by Order 42 rule 6 of the Civil Procedure Rules . The upshot of the provision is that an applicant seeking stay pending appeal must demonstrate that substantial loss will result to her if stay is not granted, and that the application has been made without unreasonable delay. Such an applicant is further required to give such security as the Court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR .
10. I have perused the record herein. I note that the Plaintiff filed a Notice of Appeal against the judgment on 16 th March 2026. There is thus an appeal, for purposes of consideration of an application for stay of execution pending appeal.
11. The Plaintiff’s expressed fear is that proprietorship of the suit property will change if the decree is enforced. In view of paragraph (e) of the judgment, it is possible that the estate of Sabina Kemunto Barasa (deceased) would be registered as proprietor of the suit property upon a valid discharge of charge being registered. Such an eventuality, if it took place before determination of the appeal, would no doubt constitute substantial loss.
12. The First to Third Defendants have contended that there is nothing to stay since the judgment had been executed. They annexed a certified copy of the register in respect of the suit property.
13. The judgment was delivered on 11 th March 2026. Any enforcement of the ensuing decree can only appear on the register after 11 th March 2026. Upon perusal of the annexed register, I note that the only entries made after delivery of the judgment are entries number 14 and 15, both dated 27 th April 2026. None of those entries refers to the decree issued in this matter. Instead, they are actions by the Land Registrar under other provisions of law which do not appear related to the enforcement of the decree. Thus, the threat of execution still looms.
14. The present application was filed on 22 nd June 2026, some three months after delivery of the judgment. No doubt the Plaintiff could have filed the application sooner. Nevertheless, I do not consider the delay to be unreasonable in the circumstances.
15. I am satisfied that the Plaintiff has satisfied the test for granting stay pending appeal. I find merit in Notice of Motion dated 22 nd June 2026. I will limit the lifespan of the stay orders with a view to encouraging the Plaintiff to be proactive in prosecuting her appeal.
16. In the result, I make the following orders:
a) I grant stay of execution of the judgment and decree herein together with all consequential orders arising therefrom pending hearing and determination of Civil Appeal No. E125 of 2026 filed in the Court of Appeal at Kisumu.
b) The stay orders shall, unless otherwise ordered, remain in force until the determination of the appeal or for a period of only 2 (two) years from the date of delivery of this ruling, whichever occurs first.
c) Costs of the application shall abide the outcome of the appeal .
Dated, signed, and delivered at Nyamira, this 22 nd day of September 2026.
Delivered in the presence of:
Mr Ochwangi for the Plaintiff
Ms Mukoya holding brief for Mr Nyamurongi for the 1 st to 3 rd Defendants
Mr Ndiritu for the 4 th and 5 th Defendants
Court Assistant: B Kerubo
a) It is hereby declared that Sabina Kemunto Barasa (deceased), and not the Plaintiff, was entitled to the parcel of land known as Kitaru Settlement Scheme/13.
b) It is hereby declared that the subdivision of the parcel of land known as Kitaru Settlement Scheme/13 into Kitaru Settlement Scheme/134, 135, 136, 137 and 138 was irregular, unlawful, illegal, null and void.
c) Entries number 2 to 12 in Part B - Proprietorship Section of the register of Kitaru Settlement Scheme/13 are hereby cancelled.
d) The registered proprietor of the parcel of land known as Kitaru Settlement Scheme/13 remains the Settlement Fund Trustees in terms of entry number 1 in Part B - Proprietorship Section of the register.
e) In view of the charge in favour of the Settlement Fund Trustees registered as entry number 1 in Part C - Encumbrances Section, the estate of Sabina Kemunto Barasa (deceased) to be registered as proprietor of the parcel of land known as Kitaru Settlement Scheme/13 upon a valid discharge of charge being registered.
f) Considering the outcome, each party shall bear own costs of the suit .
2. Subsequently, on 22 nd June 2026, the Plaintiff filed Notice of Motion dated 22 nd June 2026, which is the subject of this ruling. The following orders are sought in the application:
1. The Instant Application be certified urgent and same be heard Ex-parte in the first instance.
2. Pending the hearing and determination of the instant Application, the Honourable court be pleased to grant an interim order of stay of execution of judgement and/or Decree issued on 11 th day of March 2026 together with all consequential orders arising therefrom and/or attendant thereto.
3. The Honourable court be pleased to grant an order of stay of execution and/or enforcement of the Judgement and decree issued on 11 th day of March 2026 together with consequential orders arising therefrom and/or attendant Pending the hearing and determination of the appeal in terms of Civil appeal No. E125 of 2026 filed at the Court of appeal at Kisumu.
4. Costs of this Application do abide the Appeal.
5. Such other and/or further orders as this Honourable court may deem just and expedient be granted .
3. The application is based on the grounds listed on its face and is supported by an affidavit sworn by the Plaintiff. She deposed that she was aggrieved by the judgment and decree and that she had lodged an appeal against it. She added that she would suffer substantial loss and the appeal would be rendered nugatory if stay was not granted since the suit property would be registered in the name of Sabina Kemunto Barasa (deceased).
4. The First to Third Defendants opposed the application through a replying affidavit sworn by the Second Defendant. He deposed that the Plaintiff was guilty of laches and that there was nothing to stay since the judgment had been executed. He added that the application did not meet the requirements for granting stay pending appeal and that the Plaintiff would not suffer substantial loss since the suit property is home to several family members.
5. Although evidence of service was availed, the Fourth and Fifth Defendants neither attended Court nor participated in the hearing of the application.
6. The Plaintiff filed a supplementary affidavit in which she deposed that the judgment had not been executed and that the suit property was still registered in her name and not the name of Sabina Kemunto Barasa (deceased).
7. The application was canvassed through written submissions. The Plaintiff filed submissions dated 10 th August 2026 while the First to Third Defendants filed submissions dated 12 th August 2026. The Fourth and Fifth Defendants did not file any submissions.
8. I have carefully considered the application, the affidavits and the submissions. The sole issue for determination is whether stay of execution pending appeal should be granted.
9. The Court’s jurisdiction to grant stay of execution pending hearing and determination of an appeal is circumscribed by Order 42 rule 6 of the Civil Procedure Rules . The upshot of the provision is that an applicant seeking stay pending appeal must demonstrate that substantial loss will result to her if stay is not granted, and that the application has been made without unreasonable delay. Such an applicant is further required to give such security as the Court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR .
10. I have perused the record herein. I note that the Plaintiff filed a Notice of Appeal against the judgment on 16 th March 2026. There is thus an appeal, for purposes of consideration of an application for stay of execution pending appeal.
11. The Plaintiff’s expressed fear is that proprietorship of the suit property will change if the decree is enforced. In view of paragraph (e) of the judgment, it is possible that the estate of Sabina Kemunto Barasa (deceased) would be registered as proprietor of the suit property upon a valid discharge of charge being registered. Such an eventuality, if it took place before determination of the appeal, would no doubt constitute substantial loss.
12. The First to Third Defendants have contended that there is nothing to stay since the judgment had been executed. They annexed a certified copy of the register in respect of the suit property.
13. The judgment was delivered on 11 th March 2026. Any enforcement of the ensuing decree can only appear on the register after 11 th March 2026. Upon perusal of the annexed register, I note that the only entries made after delivery of the judgment are entries number 14 and 15, both dated 27 th April 2026. None of those entries refers to the decree issued in this matter. Instead, they are actions by the Land Registrar under other provisions of law which do not appear related to the enforcement of the decree. Thus, the threat of execution still looms.
14. The present application was filed on 22 nd June 2026, some three months after delivery of the judgment. No doubt the Plaintiff could have filed the application sooner. Nevertheless, I do not consider the delay to be unreasonable in the circumstances.
15. I am satisfied that the Plaintiff has satisfied the test for granting stay pending appeal. I find merit in Notice of Motion dated 22 nd June 2026. I will limit the lifespan of the stay orders with a view to encouraging the Plaintiff to be proactive in prosecuting her appeal.
16. In the result, I make the following orders:
a) I grant stay of execution of the judgment and decree herein together with all consequential orders arising therefrom pending hearing and determination of Civil Appeal No. E125 of 2026 filed in the Court of Appeal at Kisumu.
b) The stay orders shall, unless otherwise ordered, remain in force until the determination of the appeal or for a period of only 2 (two) years from the date of delivery of this ruling, whichever occurs first.
c) Costs of the application shall abide the outcome of the appeal .
Dated, signed, and delivered at Nyamira, this 22 nd day of September 2026.
Delivered in the presence of:
Mr Ochwangi for the Plaintiff
Ms Mukoya holding brief for Mr Nyamurongi for the 1 st to 3 rd Defendants
Mr Ndiritu for the 4 th and 5 th Defendants
Court Assistant: B Kerubo