Ochieng v Agricultural Development Corporation & 3 others (Environment and Land Petition 2 of 2022) [2025] KEELC 6798 (KLR)

The judgment was delivered on 23/4/2025, the notice of appeal lodged on 25/4/2025, and the application filed on 26/5/2025. The court noted the law prescribes no maximum or minimum delay, as this depends on the circumstances of each case, but here the unexplained delay of over one month undermined the application given the immediate operation of the order.

The applicant did not attach a decree due for execution, nor evidence that respondents had extracted one or were executing it. No official search certificate showed the register's status as at the judgment date. The applicant admitted the respondents occupy the land, and if he succeeded on appeal the Court of Appeal could effect reversals of the entries. Evidence that the respondent would dispose of the public property was lacking.

The court held that stay of execution is an interim measure delaying performance of a positive obligation in a decree. Since the applicant's petition was dismissed, the resulting order was negative and could not be stayed. Moreover, no decree had been extracted or executed, so there was no situation warranting preservation by stay.

It is for the applicant to offer security. The court held it was insufficient to rely on the copy of the title held by the court, since the judgment expressly directed it be surrendered to the 1st respondent. Costs of the suit were also not offered for deposit. Without security, the successful party is entitled to the fruits of litigation.