Hosea Kibet Ruto v Nora Atieno Olweny (Suing as the Legal Representative and Administrator of the Estate of Eliakim Washington Olweny) & 7 Others

the hearing and determination of an intended appeal, against the judgment of the Environment and Land Court (ELC) at Eldoret dated 14th May 2026. Page 2 of 5

page 2 of 10

2. The application is supported by the applicant’s affidavit sworn on 23rd June 2026. The 1st respondent opposed the application through her replying affidavit sworn on 5 th August 2026. There was no response from the 2nd, 3rd, 7th and 8th respondents. 3. The application is based on the grounds that: vide the judgment of the ELC dated 14 th May 2026, the applicant lost ownership and title to land parcel number Uasin Gishu Ngenyilelel/Settlement Scheme/448 in addition to being ordered to pay damages in the sum of Kshs. 25,000,000; the applicant has commenced the appeal process by filing a notice of appeal and requesting for typed proceedings; the intended appeal is arguable; the applicant has been in actual possession and occupation of the suit land and; an award of damages would not be adequate compensation should execution proceed and the appeal eventually succeeds. 4. On her part, the 1st respondent states that she is entitled to enjoy the fruits of her judgment. She maintains that the judgment by the ELC contains a positive order directed at the applicant to vacate the suit property. Regarding the award on damages, the 1st respondent takes the view that the applicant ought to deposit the award amount either in court or in a joint interest earning account. 5. The application was canvassed before us on 29 th July 2026 with learned counsel Mr. Bett appearing for the applicant and learned counsel Mr. Odongo appearing for the 4 th, 5th and 6th respondents. There was no appearance for the 2 nd Page 3 of 5

page 3 of 10

and 3rd respondents, though they were duly served with the hearing Page 4 of 5

page 4 of 10

notice. Only the applicant and the 6 th respondent (representing the 4th and 5th respondents) had filed written submissions. 6. The legal principles governing an application brought under rule 5(2)(b) of the Court of Appeal Rules are well settled. To succeed, the applicant must satisfy two conditions concurrently: first, demonstrate that the appeal or intended appeal is arguable (not frivolous); and second, satisfy the Court that if the order is refused and the appeal subsequently succeeds, the results of the appeal would be rendered nugatory. 7. In his submissions dated 10 th July 2026, the applicant cites this Court’s decision in Somak Travels Ltd v Gladys Aganyo [2016] KECA 669 (KLR) where it was held that the first limb of rule 5(2)(b) is satisfied by one arguable point meriting consideration and determination by the Court, and that point need not necessarily succeed at the hearing of the appeal. 8. Addressing the question whether the appeal would be rendered nugatory if the orders sought are not granted, the applicant relies on the decision of this Court in Settlement Fund Trustees & 2 Others v Mohamed & 5 Others [2025] KECA 782 (KLR) where it was held that in determining the nugatory question, the peculiar circumstances of each case must be considered. 9. The applicant argues that having been in occupation of the Page 5 of 5

page 5 of 10

suit property for over 15 years, and having undertaken substantial developments on the property, which is also Page 6 of 5

page 6 of 10

occupied by his workers and their families, cancellation of his title exposes him to the risk of alienation of the suit land to third parties, without the possibility of reinstatement to its status quo. The applicant further argues that if the order for stay of execution is declined, he will be constrained to satisfy the decretal sum of Kshs. 25,000,000 awarded in damages. 10. The 4th, 5th and 6th respondents filed submissions dated 20 th July 2026, in support of the application. They rely on this Court’s decision in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. They argue that implementation of the impugned judgment would result in eviction of the applicant before determination of the appeal, in addition to payment of the decretal sum of Kshs. 25,000,000 which would be irrecoverable in the event the appeal succeeds. They point out that the 1 st respondent’s financial capability is unknown. 11. We have evaluated the application, affidavits and submissions. Our findings are as follows: on arguability, we have reviewed the grounds of appeal and find that they are arguable. An arguable appeal is not necessarily one that must succeed, but one that raises a single bona fide point of law worthy of the Court’s full scrutiny. In this instance, the question whether the learned Judge of the ELC arrived at the correct decision in ordering cancellation of the applicant’s title and his eviction from the suit property is clearly not frivolous. Page 7 of 5

page 7 of 10

12. On the nugatory aspect, we are satisfied that the appeal will be rendered nugatory if an interim order is denied. We say so because full implementation of the impugned judgment may Page 8 of 5

page 8 of 10

result in the applicant’s eviction and destruction of his structures on the suit property, which in our view, would be irreversible in the event the appeal succeeds. 13. Further, the award in damages in the sum of Kshs. 25,000,000 is significant, and the financial capacity of the 1st respondent, has not been demonstrated and therefore, it is doubtful at this stage, whether she would be able to refund the said amount. 14. Consequently, the cumulative threshold having been fully satisfied, we allow the application and grant an interim stay of execution of the judgment of the ELC dated 14th May 2026, pending the hearing and determination of the applicant’s intended appeal. 15. The costs of the application will abide the outcome of the appeal. Dated and delivered at Eldoret this 2nd day of October, 2026. M. GACHOKA C.Arb, FCIArb …………………….……………….. JUDGE OF APPEAL NDUMA NDERI …………………….………………. JUDGE OF APPEAL L.M. NDOLO …………………….…………….... JUDGE OF APPEAL I certify that this is Page 9 of 5

page 9 of 10

a true copy of the original. Signed DEPUTY REGISTRAR. Page 10 of 5

page 10 of 10