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ELCDismissedELC Appeal No. E055 of 2024

Stephen Cherono alias Saeed Saeed v Daniel Ladama Ruto

Environment and Land Court
24 September 2026
4,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to pause execution of a land judgment because the applicant could not show real, specific loss.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (Yano J) determined the appellant's amended Notice of Motion dated 18th December 2024 (amended 23rd May 2025) seeking stay of execution of an ex parte judgment delivered on 28th November 2024 by Hon. P. Areri in Eldoret CMCC Land Case No. E078 of 2023, pending the hearing of the main appeal against orders striking out the appellant's application to set aside the ex parte proceedings. The appellant argued his counsel inadvertently failed to diarize the hearing, that the decree holder was advertising the suit land for sale, and that the appeal would be rendered nugatory. The respondent opposed, contending the application was an abuse of process, that the decree had been fully executed and he was in occupation, that no substantial loss was shown, and that no stay was first sought in the trial court. The court framed two issues: whether the application met the Order 42 Rule 6 threshold for stay, and costs. Applying the conditions of substantial loss, absence of unreasonable delay, and security, the court found the delay of about three weeks reasonable but held that the applicant failed to demonstrate substantial loss: the decree granted an injunction, a declaration of trespass, Kshs. 200,000 general damages and costs, but contained no order for sale or transfer of the land, and the respondent was already in occupation, a fact the court could not undo. The application was dismissed with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the amended application dated 23rd May 2025 meets the threshold for granting orders of stay of execution of the judgment of the lower court pending the appeal
  2. 2.Who shall bear the costs of the application

Key legal issues

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01

Whether the applicant demonstrated substantial loss under Order 42 Rule 6(2)(a)

Holding

The court found the applicant failed to demonstrate substantial loss; the decree contained no order for sale or transfer of the suit property, the respondent was already in occupation, and the alleged threatened disposal was unsupported by evidence

Reasoning

The court examined the trial court's decree, which granted a permanent injunction, a declaration of trespass, general damages of Kshs. 200,000 and costs. It noted the respondent had already taken possession in execution, a fact not denied, and that the decree did not direct sale or transfer of the land. The applicant's apprehension of disposal was speculative with no demonstrated nexus to the decree.

p. 16
02

Whether the application was made without unreasonable delay

Holding

The period between judgment on 28th November 2024 and filing of the initial application on 18th December 2024 did not constitute unreasonable delay; the later amendment did not alter that finding

Reasoning

The court found the delay of roughly three weeks between delivery of the judgment and the filing of the initial application reasonable, and held that the subsequent amendment of the application on 23rd May 2025 did not in itself change that conclusion.

p. 17
03

Whether security for due performance needed to be considered

Holding

Having failed on substantial loss, the court found it unnecessary to consider the requirement of security

Reasoning

Because the application failed at the threshold condition of substantial loss, which has been held to be the cornerstone of stay of execution, the court declined to proceed to consider the security requirement under Order 42 Rule 6(2)(b).

p. 17

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution and must be demonstrated with specific details, not mere claims
  • A court cannot stay that which has already been done in execution of a decree
  • Substantial loss must be determined by reference to the decree and the consequences of its execution, not speculative or collateral consequences

Court orders

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  1. 1.The amended application dated 23rd May 2025 is dismissed
  2. 2.Costs of the application shall be costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Eldoret Chief Magistrate's Court
Land Case No. E078 of 2023
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrate's Court; stay of execution sought under Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Stay of execution and/or further execution of the ex parte judgment delivered on 28th November 2024 pending the hearing and determination of the main appeal

Applicant failed to demonstrate substantial loss, the cornerstone of the jurisdiction to grant stay; the respondent is already in occupation and the decree contains no order for sale or transfer of the suit property

p. 17

Costs

Costs of the application will be costs in the cause, as the appeal itself is yet to be heard on its merits

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that, I find no merit in the application dated 23rd May, 2026, and the same is dismissed. As the appeal itself is yet to be heard on its merits, the costs of the application will be costs in the cause.
p. 17Final orders - dismissal and costs
In my view, this court cannot stay that which has already been done.
p. 16Stay cannot undo completed execution
The Court must determine substantial loss by reference to the decree and the consequences of its execution, rather than on the basis of speculative or collateral consequences.
p. 16Assessment of substantial loss
Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay.
p. 11Substantial loss as cornerstone (quoting Kenya Shell Ltd)

Issues in the judgment

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material

Contradictory findings on substantial loss

minor

Conflicting judgment dates in the application

minor

Submissions dated 2026, apparently a typographical error

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, "Stephen Cherono alias Saeed Saeed v Daniel Ladama Ruto", Case Analysis (2026). ELC Appeal No. E055 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5734/eng@2026-09-24

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