Barasa v Mtunji (Environment and Land Appeal E007 of 2024) [2025] KEELC 18637 (KLR) (19 November 2025) (Ruling) Neutral citation: [2025] KEELC 18637 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT AND LAND APPEAL E007 OF 2024 EK MAKORI, J NOVEMBER 19, 2025 BETWEEN MOSES MASIVAI BARASA .................................................................... APPELLANT AND ESTHER NEEMA MTUNJI ................................................................ RESPONDENT RULING 1. The application submitted by the appellant/applicant sought, among other reliefs, a stay of execution concerning the judgment rendered by Hon. S. D. Sitati (Senior Resident Magistrate) in Kilifi MCELC E105B of 2022, delivered on May 2, 2024, including the decree and all related orders, pending the hearing and determination of the appeal. 2. The grounds for this request were that the appellant's instructions indicated the application should have been led before the appellate court; however, the previous legal representative insisted on ling it in the lower court. The ruling had the adverse eect of requiring a joint account for depositing rent from the appellant's property. However, no specic instructions were given for withdrawing funds to cover overhead expenses. 3. The respondent submitted a replying adavit opposing the application, mainly arguing that it is res judicata because a similar application was previously heard and decided by a court with proper jurisdiction. Additionally, it was stated that no appeal has been led against the ruling on the previous application. Furthermore, there has been no request or application asking the court to review the verdict and orders of the prior application. The appellant has refused or neglected to comply with the trial court's conditional orders, yet the applicant seeks similar orders. The application is excessively late, having been led 20 months after the trial court entered its judgment. 4. The court directed that the application be considered through written submissions. I acknowledge receipt of submissions from learned counsel for the appellant, Mr. Makworo, and learned counsel for https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18637/eng@2025-11-19 1
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the respondent, Mr. Birya, with much appreciation, as they helped to resolve the issues raised in this application. Based on the materials before me, the issues I present to the court for its decision are whether to grant a stay of execution pending appeal and who should bear the costs of the application. 5. To be granted a stay of execution in Kenya, an applicant must demonstrate that a signicant loss will occur if the stay is not granted, that the application was made without unreasonable delay, and that they will provide security to execute the decree. The applicant must substantiate substantial loss with evidence, not just claims, and must show that the application was led promptly after the judgment. 6. Substantial loss: The applicant must prove they will suer signicant harm if a stay is not granted, supported by evidence such as documents, rather than mere assertions. 7. Application without unreasonable delay: The applicant must have led the stay petition promptly after the judgment, as delays could cause the court to deny the request. 8. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules states that: 9. “ (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sucient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub-rule (1) unless— (a the court is satised that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” The court in the case of Muchiri v Rutere (Environment & Land Case 319 & 316 of 2017, Consolidated) [2023] KEELC 22377 (KLR) (14 December 2023) (Ruling) held: “ Stay of execution pending appeal is a discretionary power bestowed upon this court by law. In Butt v Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a court should exercise the said discretion and held that a. The power of the court to grant or refuse an application for a stay of execution is discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. b. The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reserve the judge’s decision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18637/eng@2025-11-19 2
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c. A Judge should not refuse a stay if there are good grounds for it granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings d. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances in this case were that there was a larger amount of rent in dispute and the appellant had an undoubted right of appeal e. The court in exercising its power under order XLI rule 4(2) (b) of the Civil Procedure Rules, can Order Security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 10. According to the record, the trial in the lower court took over seven years to conclude, nally ending on February 5, 2024. As observed, a timely appeal was led. Following the conclusion, an application for a stay pending appeal was submitted. Additionally, an application for a stay pending appeal was led before the trial court, which issued its ruling on August 12, 2024. The trial magistrate, Hon. Sitati, granted a conditional stay, ordering the opening of a joint interest-earning account between the advocates on record representing the parties in court within 7 days of the ruling. 11. It appears that the orders were not fullled, and the same application is being reiterated here after more than a year. 12. Considering the period between the date when the judgment of the lower court was delivered, the application for stay which issued a conditional order permitting the applicant to approach the court, the duration spent hearing the matter in the lower court, and the concerns expressed by the respondent regarding the applicant's unwavering pursuit to retain the suit property at all costs, I am inclined to issue the following orders to protect the fundamental interests of the appeal and ensure its proceedings continue eectively: 13. a. Stay of execution granted based on the orders outlined below. b. The orders issued by Hon. Sitati on August 12, 2024, remain in eect with the modications listed below. c. All proceeds from the rent of the house on the suit property shall be deposited into a joint earnings account held in the names of the advocates representing the parties, eective September 2024. This should be completed within the next 30 days. d. Failure: the stay orders lapse, and the appeal collapses. e. To fast-track the appeal, the same be canvassed through a written submission as will be directed shortly. f. Cost in the appeal. g. Liberty to apply. Orders accordingly. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON NOVEMBER 19, 2025. E. K. MAKORI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18637/eng@2025-11-19 3
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JUDGE In the presence of: Mr. Makworo for the Appellant Mr. Birya for the Respondent Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18637/eng@2025-11-19 4
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