Chelagat v Kipkelwon (Enviromental and Land Originating Summons 1 of 2022) [2026] KEELC 4644 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proper Notice of Appeal as jurisdictional basis for stay
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
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.
Substantial loss
The Applicant failed to prove substantial loss, which is the 'cornerstone' of a stay application
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.
Unreasonable delay
A delay of 2 years and 8 months in filing the motion was unexplained and unreasonable
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.
Offer of security and good faith
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
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.
Legal principles established
#- 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
#- 1.The motion is devoid of merits and is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.