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ELCDismissedEldoret ELC (number not stated in judgment)· [2025] KEELC 6213 (KLR)

Tireito v Lagat & 2 others (Environment and Land Case 441 of 2012) [2025] KEELC 6213 (KLR)

Environment and Land Court
25 September 2025
4,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court refused to pause enforcement of a land ruling because the applicant showed no loss, offered no security, and the beacons had already been placed.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Eldoret by Notice of Motion dated 10th March 2025 seeking stay of execution of the ruling of Obaga J delivered on 28th February 2025 pending his intended appeal to the Court of Appeal. The underlying judgment of Munyao Sila J (26th February 2014), upheld by the Court of Appeal on 9th July 2021, entitled the Applicant to 2.5 acres to be excised from Luliet 2 and incorporated into his title Luliet 1. Obaga J's ruling dismissed most prayers of the Applicant's contempt application but allowed prayer 4, directing the County Surveyor to place beacons on the excised 2.5 acres in accordance with three options in the survey report. The 2nd and 3rd Respondents opposed, arguing the dismissed prayers were negative orders incapable of stay, that the allowed order gave the Applicant what he sought, that it had already been executed by beaconing on 14th March 2025, and that the application re-litigated settled issues. The court framed one issue: whether stay should be granted under Order 42 Rule 6. It held that the dismissed prayers were negative orders incapable of stay; that the survey report was adopted by Obaga J's ruling and the Applicant's allegations of non-consultation were false; that no substantial loss or nugatory appeal was shown since the order enforced the Applicant's own judgment; that the application was filed without undue delay; but that no security for due performance was offered. The beaconing having been completed, there was nothing to stay. The Motion was dismissed with costs to the Defendants/Respondents.

Key legal issues

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01

Stay of execution of a ruling pending appeal under Order 42 Rule 6

Holding

Application dismissed: only one of the three requirements (no undue delay) was met; substantial loss was not shown and security was not offered

Reasoning

The court applied the three-fold test in Order 42 Rule 6: substantial loss, no unreasonable delay, and security. The Applicant filed within 10 days but the survey report was adopted by Obaga J's ruling, the Applicant attended the site visit and his complaint about road frontage found no support since no option delivering the road was mandated. The order allowed gave effect to the judgment in the Applicant's favour, so no nugatory appeal arose. Security was never expressly offered. The beaconing had already been done, leaving nothing to stay.

p. 8
02

Whether a dismissed prayer is capable of stay

Holding

Dismissed prayers are negative orders incapable of execution or stay

Reasoning

Relying on Kenya Commercial Bank Ltd v Tamarind Meadows and Raymond M. Omboga, the court held that the dismissed prayers of the ruling of 28th February 2025 required no party to do or refrain from doing anything, hence nothing could be stayed; only prayer 4, which was allowed, was capable of being stayed.

p. 5
03

Whether the beaconing order remained live or had been overtaken by events

Holding

The order had been executed - beacons were placed on 14th March 2025 - so there was nothing to stay

Reasoning

The County Surveyor notified the parties of the intended implementation on 14th March 2025; photographs showed the beaconing was undertaken. The Applicant did not attend nor deny the execution. Consequently the application was overtaken by events and there was nothing capable of being stayed.

p. 8

Legal principles established

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  • A negative order dismissing an application is incapable of execution and therefore incapable of stay
  • An applicant for stay must demonstrate substantial loss, file without undue delay and provide security; failure to offer security defeats the application

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion dated 10th March 2025 is dismissed with costs to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 34
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2)
  • Constitution of KenyaArticle 159

Cases cited (12)

  • Tropical Commodity Suppliers Limited & Others vs International Credit Bank (in liquidation)
    (2004) EA
  • RWW vs EKW
    (2019) eKLR
  • Butt vs Rent Restrictions Tribunal
    (1979) eKLR
  • John Odongo vs Joyce Irungu Muhatia
    (2015) eKLR
  • Sonalux Limited & Another vs Barclays Bank Kenya Limited & 2 Others
    (2008) KECA 257 (KLR)
  • Kaushik Panchamatia & 3 Others vs Prime Bank Limited & Another
    (2020) eKLR
  • In Re: Charles Levitan
    (2001) eKLR
  • Peris Wakiuru Gaita vs Grace Wanjiru Mbugua
    (2010) eKLR
  • Machira t/a Machira & Co. Advocates vs East African Standard
    (2002) eKLR
  • Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others
    (2016) eKLR
  • Raymond M. Omboga vs Augustine Pyan Maranga
    Kisii HCCA No. 15 of 2010
  • Focin Motorcycle Co. Limited vs Ann Wambui Wangui & Another
    (2018) eKLR
Jurisdiction invoked
Order 42 Rule 6(1) & (2) of the Civil Procedure Rules (stay of execution pending appeal, court appealed from)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tireito v Lagat & 2 others (Environment and Land Case 441 of 2012) [2025] KEELC 6213 (KLR)", Case Analysis (2025). Eldoret ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6213/eng@2025-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.