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ELCPartially AllowedEldoret HCC No. 77 of 2007 (as transferred to the ELC)· [2025] KEELC 7808 (KLR)

Erick Kipkemboi Barng’etuny v Rubis Energy Kenya Plc (Formerly Kenya Oil Company Limited) (Environment and Land Case 340 of 2012) [2025] KEELC 7808 (KLR)

Environment and Land Court
13 November 2025
5,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court paused Rubis Energy's eviction pending appeal, but only after the company put up KShs. 10 million as security and kept paying rent.

What this practically means

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Executive summary

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The Defendant/Applicant, Rubis Energy Kenya PLC, moved the Environment and Land Court at Eldoret by Notice of Motion dated 9th April 2025 seeking a stay of execution of the judgment delivered on 26th March 2025, which ordered its eviction from Eldoret Municipality Block 7/111 and payment of accrued rent assessed by a valuer nominated by the Chairman of the Chartered Institute of Surveyors of Kenya (CISK). The Applicant deponed that it had occupied the land since 1980, running a service station, and that eviction would destroy specialised investments, disrupt business and workers' livelihoods, and render its intended appeal nugatory. The Respondent opposed, asserting his right to enjoy the fruits of his judgment, alleging the Applicant was a trespasser, and proposing that any stay be conditional on deposit of accrued rent of about KShs. 36.5 million plus monthly rent into a joint interest-earning account. The Applicant also alleged the Respondent procured the valuation behind its back in breach of the stay orders. The court framed two issues. It found no contravention: the judgment did not specify who was to approach the CISK Chairman, and the valuation limb of the judgment was not suspended by the stay. On stay, the court applied Order 42 Rule 6(2) and found all three conditions met: eviction would cause substantial loss going beyond ordinary execution and would extinguish the substratum of the appeal; the 14-day delay was not inordinate; and security could be given. The court declined to rely on the disputed valuation figure and fixed security at KShs. 10,000,000/, plus monthly rent at the 2000 rate into a joint interest-earning account, failing which the stay lapses. Each party was ordered to bear its own costs of the application.

Key legal issues

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01

Whether the Respondent contravened court orders by procuring the valuation

Holding

No contravention; the judgment did not specify who was to contact the Chairman of CISK, and the rent-assessment limb of the judgment was not affected by the stay.

Reasoning

The judgment of 26th March 2025 did not direct which party should engage the Chairman of the Chartered Institute of Surveyors of Kenya, nor that the parties act in tandem. The 30-day stay related to payment of accrued rent and eviction, not to the valuation timeline. The Applicant took no steps to object to the valuer's appointment. The valuation report is therefore properly on record, though the Applicant may seek another valuer or challenge the report.

p. 6
02

Substantial loss

Holding

Satisfied; eviction would destroy specialised investments and extinguish the substratum of the appeal.

Reasoning

The Applicant operates a service station with specialised equipment and infrastructure on the suit land. Eviction would not be a simple matter of vacating and could destroy investments and harm business and workers, resulting in substantial loss not necessarily compensable by damages. If evicted, the essence of the appeal - the right to occupy and operate the land - would be extinguished, rendering the appeal nugatory.

p. 8
03

Unreasonable delay

Holding

Satisfied; the application was filed 14 days after judgment, which is not inordinate delay.

Reasoning

Judgment was delivered on 26th March 2025 and the application filed on 9th April 2025, 14 days later. The court held this delay could not be termed inordinate, particularly since the Applicant filed a Notice of Appeal within the statutory period.

p. 8
04

Security for due performance of the decree

Holding

Satisfied by an order to deposit Kshs. 10,000,000/= plus monthly rent into a joint interest-earning account.

Reasoning

The purpose of security is to guarantee due performance of the decree, not to punish the applicant. The Applicant's reputation alone was insufficient given the substantial accrued rent claimed. The court fixed Kshs. 10,000,000/= as sufficient security, having declined to rely on the valuation figure, and ordered rent at the 2000 rate into a joint interest-earning account held by both advocates.

p. 9

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance of the decree.
  • Substantial loss goes beyond the ordinary consequence of losing a case; it is loss that would render the appeal nugatory and may not be compensable by damages.
  • Security under Order 42 Rule 6 guarantees due performance of the decree and is not meant to punish the applicant.

Court orders

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  1. 1.Pending hearing and determination of the Applicant's intended appeal by the Court of Appeal, an order staying execution of the judgment delivered on 26th March 2025 together with the consequential Orders and Decree
  2. 2.The Applicant to deposit Kshs. 10,000,000/= as security for the due performance of the decree within thirty (30) days, failing which the stay will lapse
  3. 3.The Applicant to pay rent at the rate payable in the year 2000 into a joint interest earning account to be held and operated by the advocates representing the parties within thirty (30) days
  4. 4.Each party shall bear its own costs of the application
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Erick Kipkemboi Barng’etuny v Rubis Energy Kenya Plc (Formerly Kenya Oil Company Limited) (Environment and Land Case 340 of 2012) [2025] KEELC 7808 (KLR)", Case Analysis (2025). Eldoret HCC No. 77 of 2007 (as transferred to the ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7808/eng@2025-11-13

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