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ELCDismissed· [2026] KEELC 2539 (KLR)

Kibet v Cherogony & 2 others (Environment and Land Case E34 of 2024) [2026] KEELC 2539 (KLR)

High Court of Kenya
30 April 2026
LKL Komingoi
1,448 words in judgment
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The bottom line

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Kenya's High Court refused to pause a land judgment on appeal because the losing party couldn't show it would suffer real harm.

What this practically means

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Executive summary

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This ruling by L Komingoi J at Nakuru, delivered virtually on 30th April 2026, determines a Notice of Motion dated 26th January 2026 brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules, 2010. The application, supported by the affidavit of Laban Chepsergon Cherogony (1st Respondent), sought maintenance of status quo over parcel Kampi ya Moto/Kampi Ya Moto Block 1/1010 and a stay of execution of the judgment dated 15th January 2026 pending appeal. It was opposed by Sammy Seguton Kibet (Appellant) through a replying affidavit sworn 18th February 2026, and canvassed by written submissions. The Appellant argued the Notice of Appeal was defective, that no substantial loss, arguable appeal or security had been demonstrated, and that the application was an abuse of process. The Respondents argued substantial loss (risk that the land might be transferred and unavailable by the end of the appeal), timeliness, and the 1st Respondent's undertaking not to dispose of the property. The court framed two issues: whether the Order 42 rule 6 conditions for stay were satisfied, and costs. Applying Order 42 rule 6(2), it held that since the appellant was already in possession of the suit property and the respondents had refused to effect transfer in his favour, the respondents had not demonstrated substantial loss. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the respondents demonstrated substantial loss warranting stay of execution pending appeal

Holding

No substantial loss was demonstrated; the appellant is already in possession of the suit property and the respondents refused to effect transfer, so no loss would flow from refusal of a stay

Reasoning

The court noted that per the judgment of Ombwayo J the appellant is in possession of the suit property while the respondents refused to effect transfer in his favour. Given that state of affairs, the respondents' claim that they would suffer substantial loss if the land were transferred or disposed of was not made out, so the cornerstone condition for a stay failed.

p. 4

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, absence of unreasonable delay, and provision of security under Order 42 rule 6(2)
  • Where the decree-holder is already in possession and has refused to effect transfer, a party resisting transfer has not demonstrated substantial loss

Court orders

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  1. 1.The Notice of Motion dated 26th January 2026 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (11)

  • Equity Bank Ltd Vs West Link Mbo Ltd
  • Mae Properties Limited Vs Joseph Kibe & Another
  • Kenya Shell Limited Vs Benjamin Karuga Kibiru & Another
  • James Wangalwa & Another Vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Stanley Kang'ethe Kinyanjui Vs Tony Ketter & Others
  • Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & Another
  • Machira t/a Machira & Co Advocates Vs East African Standard
  • Ena Investment Ltd Vs Bernard Ochau Mose & 2 Others
  • RWW Vs EKW
    (2019) eKLR
  • Absalom Dova Vs TArbo Transporters
    (2013) eKLR
  • Wanachi Group (K) Limited & Another Vs Metrine Namulisa Musamali
On appeal from
Not stated (judgment dated 15th January 2026 delivered 'herein' per Hon. A O Ombwayo J)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appellate jurisdiction to stay execution pending appeal)

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, "Kibet v Cherogony & 2 others (Environment and Land Case E34 of 2024) [2026] KEELC 2539 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2539/eng@2026-04-30

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