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Original judgment

Lokwdingole

Lokwdingole (Suing as the Personal Representative of the Estate of Lokendingole Lipopus (Deceased)) v Ariongonyang & 2 others (Environment and Land Case 98 of 2016) [2025] KEELC 18260 (KLR) (10 December 2025) (Ruling) Neutral citation: [2025] KEELC 18260 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ENVIRONMENT AND LAND CASE 98 OF 2016 CK NZILI, J DECEMBER 10, 2025 BETWEEN EMMANUEL LOKWDINGOLE (SUING AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LOKENDINGOLE LIPOPUS (DECEASED)) .............................................................................................. PLAINTIFF AND LOKOYE ARIONGONYANG ......................................................... 1ST DEFENDANT EMMANUEL LOLINGANYANG ................................................... 2ND DEFENDANT THOMAS JELIM .............................................................................. 3RD DEFENDANT RULING 1. This court is asked to stay the execution of its decree and or judgment of 11/6/2025, and any other proceedings in this le, and to leave be granted to the applicant to amend the notice of appeal, and the letter dated 18/6/2025, to substitute the 1st defendant with his legal representative, pending this application and the intended appeal at the Court of Appeal. 2. The grounds are that the applicants have led a notice of appeal and but have yet to le a memorandum of appeal and the record of appeal. 3. The applicants depose that they will be evicted if stay orders are not granted, the appeal, which has high chances of success, shall be overtaken by events. Again, the applicants depose that they stand to suer irreparable loss if evicted, thus the status quo should be maintained. Annexed to the adavit in support are copies of the authority to plead, the notice of appeal, draft memorandum of appeal, grant, death certicate, amended letter, and notice of appeal as annexures marked TJ-1-5. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18260/eng@2025-12-10 1

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4. The respondent opposes the motion vide a replying adavit dated 24/10/2025. He deposes that he is entitled to enjoy the fruits of his judgment, having lost the use of the suit land for the last 10 years, that execution is a lawful process, and the applicants have failed to show how they stand to suer irreparable harm or the appeal be rendered nugatory. 5. Further, the respondent deposes that the applicants have not explained the inordinate delay of 3 months; it is not sucient to state that they will deposit security for costs, the court lacks jurisdiction to grant leave to amend the notice of appeal, and that there are sucient reasons demonstrated to warrant the orders sought. The respondent deposes that he has no intention to dispose of, or aect the condition of the suit land adversely. 6. Through written submissions dated 24/10/2025, the respondent submits that under Order 42 of the Civil Procedure Rules, the applicants are not entitled to a stay of execution pending appeal, given that they have not met the threshold under Order 42 Rule 6 thereof, and that stay is discretionary. 7. The respondent submits that the delay of 99 days is inordinate; the applicants have failed to demonstrate substantial loss and provide security for costs and mesne prots. Reliance is placed on Jaber Mohsen Ali & another -vs- Priscillah Boit & another [2014] KEELC 132 (KLR), where the cited Christopher Kendagor -vs- Christopher Kipkorir Eldoret E&L 919 of 2012, Jonathan Kiprotich Barsulai -vs- John Kiprop Chemweno & 7 others [2018] KEELC 4171 (KLR), and James Wangalwa & another -vs- Agnes Naliaka Cheseto [2012] eKLR. 8. To stay the execution of a decree is a discretionary power exercised in favor of a party who has satised the conditions set in Order 42 of the Civil Procedure Rules. The application must be led timeously. Any delay of even one day can be fatal. It has to be explained. Substantial loss is the cornerstone of stay orders. It has to be demonstrated with cogent and tangible evidence on how the substratum of the appeal shall dissipate or change in the absence of any stay orders. It is not enough to allege substantial loss without proof. Security for the due realization of the decree, should the appeal not succeed, has to be oered and stated. Exceptional circumstances must be shown why it is in the interest of justice to grant the orders sought. 9. Applying the foregoing principles as enunciated in the caselaw cited by the respondent, I nd the applicants have failed to substantiate the conditions of stay. The delay of 3 months is inordinate and has not been suciently explained. The execution process is lawful in nature. It cannot amount to substantial loss. Rendering a non-led appeal nugatory is impossible in the circumstances. Security has not been mentioned, let alone being oered, which is commensurate with the decree. The other prayers in the application have no basis set out in the supporting adavit. The upshot is that the application is dismissed with costs. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF DECEMBER 2025. In the presence of: Court Assistant - Dennis Kiarie for plainti - present Okubasu for Khaosa for defendants - present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18260/eng@2025-12-10 2

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