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ELCDismissedNot stated in the extract· [2025] KEELC 8197 (KLR)

Estate of Lomaria Kotoruk alias Plimo Kotoruk (Deceased) represented by Susan Cherop v Psinen (Environment and Land Case 54 of 2016) [2025] KEELC 8197 (KLR)

Environment and Land Court
26 November 2025
CNC.K. NZILI
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, the unsuccessful party before this court (ELC Kitale), moved the court by notice of motion dated 3/10/2025 seeking stay of execution of the decree and a temporary injunction restraining the respondent, the decree holder, from cutting down, destroying or wasting maize crops and a fence on the suit property pending an intended appeal. He relied on a notice of appeal already filed, photographs alleging that hired goons were on the land destroying crops, an offer of security, and the risk of his appeal being rendered nugatory. The respondent opposed through a replying affidavit, showing that judgment was delivered on 16/6/2025, a decree requiring vacant possession by 16/9/2025 had been extracted and implemented, she had taken peaceful possession on 27/9/2025 with police security, title had been issued and registered in her favour on 3/10/2025, and that only a 100 ft by 100 ft portion was cleared. She argued there was inordinate unexplained delay, no substantial loss demonstrated, and no specific security offered, and that a notice of appeal does not operate as a stay. The court, applying Order 42 Rule 6(2) and extensive case law on substantial loss, delay and security, found the automatic 90-day stay had expired on 16/9/2025, the applicant waited about 16 days without explanation, the decree had already been implemented on the register, and the status quo had irreversibly changed. Substantial loss and nugatory-impact were unsubstantiated. The application dated 3/10/2025 was dismissed with costs to the respondent.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) were met

Holding

They were not; there was inordinate unexplained delay, the decree had been implemented, substantial loss was unsubstantiated and no specific security was offered

Reasoning

Judgment was delivered on 16/6/2025 and the 90-day automatic stay expired on 16/9/2025. The application was filed on 3/10/2025, about 16 days after expiry, with no explanation. Vacant possession had been effected on 21/9/2025 and register entries changed. The applicant failed to demonstrate substantial loss or that the appeal would be rendered nugatory, and offered no specific security.

p. 3
02

Whether a temporary injunction pending appeal should issue to preserve the maize crops and fence

Holding

No, because an injunction preserves the status quo and the status quo had already changed with vacant possession and transfer of title

Reasoning

The purpose of an injunction is to keep matters in status quo, but the respondent had already taken vacant possession peacefully with police security, the decree had been implemented and title issued on 3/10/2025. Reversing those changes would injure the successful respondent's right to enjoy the fruits of the judgment, and the applicant failed to prove sufficient cause.

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Legal principles established

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  • Executing a decree per se does not amount to substantial loss; the applicant must show the execution will irreparably negate the essential core of the appeal
  • A court should not be used as an instrument to enforce an illegality, and its orders are not made in vain
  • Notice of appeal does not operate as a stay; stay requires substantial loss, no unreasonable delay, and security

Court orders

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  1. 1.The application dated 3/10/2025 is dismissed
  2. 2.Costs to the respondent
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Estate of Lomaria Kotoruk alias Plimo Kotoruk (Deceased) represented by Susan Cherop v Psinen (Environment and Land Case 54 of 2016) [2025] KEELC 8197 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8197/eng@2025-11-26

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