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ELCDismissedIten ELCC No. 1 of 2022 (Ruling)· [2026] KEELC 4644 (KLR)

Chelagat v Kipkelwon (Enviromental and Land Originating Summons 1 of 2022) [2026] KEELC 4644 (KLR)

Environment and Land Court of Kenya
22 July 2026
3,481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The court refused to halt execution of a land judgment because the applicant never filed a proper Notice of Appeal in time.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Iten (Olao J) on a Notice of Motion dated 24th October 2025 by Paulina Kobilo Kipkelwon seeking stay of execution of a judgment delivered by Waithaka J on 22nd February 2023, in which Reuben K. Chelagat was awarded 1¼ acres out of land parcel Baringo/Kapropita/308, pending an appeal. The court set out the four conditions under Order 42 Rule 6 of the Civil Procedure Rules: sufficient cause, substantial loss, no unreasonable delay and offer of security, as distilled in Vishram Halai v Thornton & Turpin Ltd and Kenya Shell Ltd v Benjamin Kibiru. The court first found that both Notices of Appeal filed by the Applicant were lodged far outside the 14-day period in Rule 77(2) of the Court of Appeal Rules 2022, with no extension of time granted, and no appeal had been filed; the absence of a proper Notice of Appeal deprived the court of jurisdiction to grant a stay, and on that basis alone the motion collapsed. In any event, the Applicant failed to prove substantial loss: the Respondent was awarded only 1¼ acres of a property exceeding 4 acres, defeating her claim that she would lose the whole land, and no evidence showed the Respondent could not refund costs. The 2 years and 8 months' delay in filing the motion was unexplained on oath; explanations offered only in counsel's submissions could not constitute evidence, and litigation belongs to the party, not the advocate. No offer of security was made, from which the court inferred the motion was a knee-jerk reaction to impending execution rather than a good-faith application. The motion was dismissed with costs to the Respondent.

Key legal issues

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01

Proper Notice of Appeal as jurisdictional basis for stay

Holding

Both Notices of Appeal were filed well beyond the 14-day period in Rule 77(2) of the Court of Appeal Rules 2022 and no extension of time was granted, so no proper appeal existed to anchor a stay application

Reasoning

Rule 77(2) of the Court of Appeal Rules 2022 required lodgement of a Notice of Appeal within 14 days of the decision. The judgment was delivered on 22nd February 2023; both notices (29th May 2023 and 27th October 2025) were late with no extension. Without a proper Notice of Appeal the court lacked jurisdiction to grant stay pending appeal, and no appeal had even been filed. On this alone the motion collapsed.

p. 8
02

Substantial loss

Holding

The Applicant failed to prove substantial loss, which is the 'cornerstone' of a stay application

Reasoning

The Applicant claimed she would lose the whole suit property and costs. The court found from the register that the land measures over 4 acres, and the Respondent was awarded only 1¼ acres, so the Applicant could not lose the whole land. No evidence showed the Respondent was impecunious and unable to refund costs if the appeal succeeded. Mere assertion of loss without specific particulars does not satisfy the test.

p. 9
03

Unreasonable delay

Holding

A delay of 2 years and 8 months in filing the motion was unexplained and unreasonable

Reasoning

The judgment was delivered on 22nd February 2023 and the motion filed on 27th October 2025. The Applicant gave no explanation on oath; the explanation appeared only in counsel's submissions, which are not evidence. Even if prior counsel had failed to act, litigation belongs to the party and the Applicant should not have waited so long.

p. 10
04

Offer of security and good faith

Holding

The Applicant made no offer of security, from which the court inferred the motion was not filed in good faith but as a reaction to impending execution

Reasoning

Order 42 Rule 6(2)(b) requires an applicant to furnish security. The Applicant offered none and did not demonstrate willingness to abide by terms. Citing Wycliffe Sikuku Walusaka v Philip Kaita Wekesa, the court held such an offer must come from the applicant as a sign of good faith; its absence suggested the motion was a decoy to obstruct the Respondent's enjoyment of his judgment.

p. 16

Legal principles established

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  • A valid Notice of Appeal lodged within the statutory period is a jurisdictional precondition to an application for stay of execution pending appeal
  • Submissions are not evidence and cannot take the place of sworn evidence in support of an application
  • Litigation belongs to the party, not the party's advocate; a litigant cannot rely on counsel's inaction to excuse inordinate delay
  • An applicant for stay must satisfy all four conditions under Order 42 Rule 6: sufficient cause, substantial loss, security and no unreasonable delay

Court orders

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  1. 1.The motion is devoid of merits and is dismissed
  2. 2.Costs to the Respondent
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Article 159(2) of the Constitution

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, "Chelagat v Kipkelwon (Enviromental and Land Originating Summons 1 of 2022) [2026] KEELC 4644 (KLR)", Case Analysis (2026). Iten ELCC No. 1 of 2022 (Ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4644/eng@2026-07-22

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