Kugun v Sum & 9 others (Environment and Land Case 233 of 2012) [2026] KEELC 4702 (KLR)
The bottom line
#The ELC Eldoret allowed enforcement of a 2022 land-sharing judgment, ruling that a pending appeal does not stop execution unless a valid stay of execution has actually been granted.
What this practically means
#Executive summary
#Key legal issues
#Whether the application to enforce the judgment of 18th November, 2022 is merited despite a pending appeal and application for stay at the Court of Appeal
The application was merited. No stay of execution had been issued by either the trial court or the Court of Appeal, and no orders setting aside, varying or reviewing the judgment existed, so nothing barred execution. However, any eviction must comply with section 152E of the Land Act.
The court confirmed a decree had been properly extracted, signed and sealed on 30th July, 2024, dismissing the respondents' contrary assertions as misleading. It held that the mere existence of an appeal (Eldoret COACIVAPP NO. E024 of 2026) and a pending stay application do not automatically stay execution. Enforcement was allowed in terms of prayers 3 and 4, tempered by a direction to comply with section 152E of the Land Act in the event of eviction.
Whether the respondents' contention that no decree had been extracted defeated the application
No. The court record showed a decree properly extracted, signed and sealed and issued by the Deputy Registrar, ELC Court.
The 4th Interested Party argued that execution required formal extraction and approval of a decree and strict procedural compliance, and that no decree had been extracted. The court examined the record, found proof of a decree extracted, signed, sealed and issued on 30th July, and disregarded the respondents' assertions as misleading.
Costs of the application
Each party to bear their own costs, departing from the general rule that costs follow the event.
Although the general rule under the proviso to section 27 of the Civil Procedure Act is that costs follow the event, the court, considering the circumstances of the case, directed that each party bear its own costs of the application.
Legal principles established
#- The filing and existence of an appeal at the Court of Appeal does not automatically operate as a stay of execution of a trial court's judgment and decree.
- In the absence of a valid stay or orders setting aside, varying or reviewing a judgment and decree, the decree holder may execute and enforce the decree.
- Any eviction in execution of a land decree must comply with section 152E of the Land Act.
Court orders
#- 1.Leave granted to the firm of Maritim & Company Advocates to come on record after judgment to represent the Interested Parties/Applicants (application allowed in terms of prayers no. 3 and 4).
- 2.The judgment dated 18th November, 2022 directing the parties to share the subject parcel L.R. No. 8313 according to the register and transactions therein is to be enforced.
- 3.The County Land Surveyor Uasin Gishu to carry out survey and OCS Ziwa Police Station to provide security and ensure law and order prevails during the eviction.
- 4.Applicants/Decree holders directed to strictly comply with the provisions of Section 152E of the Land Act in the event of any eviction.
- 5.Each party to bear their own costs of the application.
- Jurisdiction invoked
- Order 22 of the Civil Procedure Rules (execution of decrees and orders arising out of a judgment); supervisory/execution jurisdiction of the court that passed the decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kugun v Sum & 9 others (Environment and Land Case 233 of 2012) [2026] KEELC 4702 (KLR)", Case Analysis (2026). Notice of Motion dated 2nd April, 2025 (in the suit determined by judgment of 18th November, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4702/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.