REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ELC NO. 176 OF 2016 NICODEMUS LOWOTON-----------1ST EMURON PLAINTIFF/APPELLANT NGAMIA CONSULTING COMPANY LIMITED-----2ND PLAINTIFF/APPELLANT VERSUS CHARLES EJORO LOROGOI----------------1ST DEFENDANT/RESPONDENT DAVID MERIMUG-----------------------------2ND DEFENDANT/RESPONDENT KANU TURKANA CENTRAL---------------3RD DEFENDANT/RESPONDENT MINISTRY OF LANDS, PHYSICAL PLANNING & HOUSING AND URBAN AREAS MANAGEMENT, TURKANA COUNTY--------4TH DEFENDANT/RESPONDENT KENYA AFRICAN NATIONAL UNION---------5TH DEFENDANT/RESPONDENT AND ENOCK KAMARIO------------------------------------------1ST INTERESTED PARTY JOSEPH LONGOLE----------------------------------------2ND INTERESTED PARTY LOKWATUBWA LOMODEI-----------------------------3RD INTERESTED PARTY IMMANUEL LOMUKUNNY----------------------------4TH INTERESTED PARTY RULING: KITALE ELC NO. 176 OF 2016 – D.O.D. – 30/07/2004 1
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RULING 1. The court is asked to stay the execution of a judgment delivered on 25/3/2025, pending hearing and determination of the intended appeal. The reasons are contained on the face of the application and in a supporting affidavit of Nichodemus Emuron Lowoton, sworn on 17/4/2025. It is deposed that a notice of appeal was filed as per annexure marked NEL-1, a decree has been extracted as per annexure marked NEL-2, there will be irreparable loss or damage if the execution proceeds, the suit was dismissed for lack of locus standi, which the applicants will demonstrate at the appeal. Further, the applicants depose that they are willing to abide by any orders granted by the court; otherwise, the application was filed timeously. 2. The 1st, 2nd and 3rd respondents oppose the application through the grounds of opposition dated 16/5/2025 that a negative order may not be stayed. 3. The 3rd and 5th respondents oppose the application through a replying affidavit of George Wainaina, sworn on 21/5/2025, that the court cannot stay a negative order. RULING: KITALE ELC NO. 176 OF 2016 – D.O.D. – 30/07/2004 2
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4. The 1st, 2nd and 3rd respondents rely on written submissions dated 16/5/2025 that the applicants do not meet the threshold of Order 42 of the Civil Procedure Rules, especially where the dismissal order was negative in nature. Reliance is placed on Nathan Muhatia Pala T/A Muhatia Pala Auctioneers -vsNyamai [2013] KEELC 2984[KLR]. 5. A party seeking stay of execution has to file the application within a reasonable time, demonstrate substantial loss and offer security for the realization of the decree, should the appeal not succeed. The law has not set what constitutes a maximum or minimum delay. It all depends on the circumstances of each case. In this application, the ruling was rendered on 25/3/2025. The application was filed on 5/5/2025. I find the delay not inordinate. 6. Substantial loss is the cornerstone of stay. It has to be demonstrated with tangible and cogent evidence. Evidence must show that the crux of the appeal will be interfered with or is threatened with dissipation at the detriment of the applicant. See James Thomas Andafu -vs- Joseph Makokha Akhulunya [2018] eKLR. 7. Execution is a lawful process as held in James Wangalwa & Another -vs- RULING: KITALE ELC NO. 176 OF 2016 – D.O.D. – 30/07/2004 Agnes Naliaka 3
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Cheseto [2013] eKLR. The loss or damage likely to occur to the subject matter of appeal must be substantiated or quantified. See Butt -vs- Rent Restriction Tribunal [1979] eKLR. 8. The nugatory aspect, according to Tropical Treasure Island -vs- Mang & Others (Civil Appl. No. 26 of 2021 [2021] KECA 319[KLR] (17th December 2021) (Ruling) has to be demonstrated. 9. In this application, the nexus between the dismissal of the suit, execution and how the appeal will be rendered useless has not been substantiated. In Mwanthii & 2 Others -vs- Mukami (Civil Appeal Appl. No. E014 of 2024) [2024] KECA 624[KLR] (24th May 2024) (Ruling), the court cited Western College of Arts and Applied Sciences -vs- EP Oranga & 3 others [1976] KECA 15 (KLR)and Cooperative Bank (Supra). 10. In Co-operative Bank of Kenya Limited -vsBanking Insurance & Finance Union (Kenya) (2015) eKLR, the court held that ordinary stay of execution is an interim order that seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment and that the delay presupposes the existence of a situation to stay called a positive order. An order of stay is expected to serve RULING: KITALE ELC NO. 176 OF 2016 – D.O.D. – 30/07/2004 4
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a certain purpose. See Mugenyi & Co. Advocates vs- National Insurance Corporation Civil Appeal No. 13 of 1984. 11. In this suit, the plaintiffs’ suit was dismissed with costs for lack of locus standi. Equally, the interested parties’ counterclaim was dismissed. The only aspect is the costs of the suit. The applicants have not said that the costs have been taxed and are due for execution. 12. I find there is nothing to stay. The application is dismissed with costs. 13. Orders accordingly. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 30th day of July 2025. In the presence of: Court Assistant – Dennis Masai for Kiarie for 1st, 2nd and 3rd respondents/defendants present Melilei for plaintiff/applicant present Otieno for 5th respondent present Interested parties HON. C.K. NZILI RULING: KITALE ELC NO. 176 OF 2016 – D.O.D. – 30/07/2004 5
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JUDGE, ELC KITALE. RULING: KITALE ELC NO. 176 OF 2016 – D.O.D. – 30/07/2004 6
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