Loyor v Lomer (Environment and Land Appeal E004 of 2026) [2026] KEELC 2977 (KLR)

3. The applicant deposes that in the ruling annexed as RAL-(1), the trial court overlooked the circumstances and consequences of his decision amidst the entry of the estate of Ali Fathil Bisbas, made a pre-determination decision without according the estate an opportunity to be heard on the merits, despite having acquired the requisite authority as per the annexed copy of ad litem as RAL-(2). 4. The applicant deposes that the estate of the deceased has been drawing its livelihood from the subject property, and following the ruling, the respondent has since moved to start fencing of the property and made preparations to construct thereon, as seen in the photos attached as annexure marked RAL-(3). 5. The applicant deposes that the estate has been greatly inconvenienced, prejudiced, and embarrassed by the injustice meted out by the ruling and its orders thereto, and that there is a high risk of imminent and irrecoverable loss. 6. The applicant deposes that unless the matter is heard immediately and a stay granted, the processes herein will be rendered nugatory, thereby causing grave and irreversible damage. 7. The application is opposed through a replying afidavit of Peter Moe Lomer sworn on 11/3/2026, terming the same as misconceived, incompetent, an abuse of the court process, a mongrel, unknown in law, a gambling and a chancing endeavor and based in blatant lies as the plot has been bare and wasting following persistent delays to his detriment the applicant to the lower court suit, where the applicant has changed lawyers five times. 8. The respondent deposes that the dispute between the parties was heard and determined on merit by the lower court, and a judgment was delivered on 29/10/2025, while a copy is attached as PML-(1), which the applicant did not appeal against. 9. The respondent deposes that from the judgment, his Plot is No. 424 Nawaitorong and not Plot No. 324 Kanamkemer, as indicated in this application. The respondent deposes that the applicant is lying that she and her family derive their livelihood from the suit property. The respondent deposes that after the judgment, the applicant sought to reopen the suit case by introducing new parties, by choosing to file an application for review of the judgment, which was dismissed by a ruling dated 16/2/2026, attached as PML-(2). 10. The respondent deposes that the applicant had fully participated in the trial, had every opportunity to present her case, the issues raised in the review application ought to have been raised by way of an appeal, and the ruling was lawful. 11. It is deposed that the applicant is now seeking to relitigate a matter already determined by a competent court. The respondent states that the mere filing of an appeal to the ruling does not amount to a stay, more so when she has not satisfied the threshold of stay of execution. 12. As to the allegation that the estate of Ali Fathil Bisbas will sufier irreparable loss, the respondent deposes that these allegations are speculative, not supported by evidence, substantial loss is not demonstrated, the estate has no recognizable stake or legal interest demonstrated in the application, and that the trial court has already made a finding that he is the legal owner of the plot. He lawfully took possession following the judgment and has been utilizing it, which judgment the applicant did not appeal against, for her to have a basis to restrain or interfere with his lawful use and occupation. 13. The respondent deposes that the application, which is frivolous and vexatious, is seeking to deny him or delay the enjoyment of the fruits of his judgment, which he lawfully took over and has commenced construction on. The respondent deposes that the balance of convenience tilts in favour of allowing him to continue utilizing the property, as the applicant has not ofiered any security; it is in the interest https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2977/eng@2026-05-14 2

page 2 of 6

of justice that the applicant prosecutes her appeal instead of filing an application, and that he will be gravely prejudiced as the lawful owner if the orders sought are granted. 14. The court has come across a further afidavit sworn on 10/4/2026, which was filed without leave of the court and long after the application was argued on 12/3/2026 and a ruling date granted. Similarly, by directions given on 6/3/2026, the parties were to put in a written submission by the date of the interpartes hearing. 15. The parties argued the application on 12/3/2026. Therefore, filing or uploading of written submissions by the applicant dated 13/4/2026, a month after the application was argued, is not only irregular but also inconsequential. 16. The power to grant a stay of execution and temporary injunction pending hearing and determination of an appeal is governed by Order 42 of the Civil Procedure Rules. The parameters to consider on stay include: filing the application without inordinate delay, showing that there will be substantial loss or damage, and ofiering security for the due realization of the decree should the appeal not succeed. 17. What the applicant is appealing against is a ruling delivered on 16/2/2026, to which the lower court had been moved to stay execution of the judgment delivered on 29/10/2025, review, vary, or set aside the same, allow joinder of the estate of the late Ali Fathil Bisbas as a co-defendant, re-open the suit and allow the intended co-defendant to participate in the suit over ownership of the plot. 18. The trial court simply dismissed the application, granting no positive order capable of execution. Decisions abound that a negative order is not capable of being stayed. 19. In Mwanthii & Others -vs- Mukami [2024] KECA 624 [KLR], and Cooperative Bank of Kenya Ltd -vs- Banking Insurance Finance and Insurance (K) [2015] KECA 353 [KLR], the court said that an order of stay of execution will not issue against a negative order. 20. What the trial court did was to dismiss the application. The dismissal order cannot be enforced and is not capable of execution, save for the issue of costs against the applicant. It was not a positive order requiring the applicant to do or refrain from doing anything. It does not confer any right to the respondent or prejudice the applicant. It simply found the applicant’s claim lacking merit. The act of dismissal of the application cannot be stayed by this court. 21. In George Ole Sangui & others -vs- Kedong Ranch Ltd [2015] eKLR, the court said that a dismissal order cannot be enforced and is not capable of execution. Even assuming that the applicant is aggrieved by the order, there must be a demonstration of substantial loss or damage to sufier through tangible and credible evidence. 22. Execution, per se, as held in James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR, does not amount to substantial loss. The applicant must demonstrate its nexus with the subject matter of the appeal. 23. Further, an applicant must show the status of the substratum of the appeal, developments, or loss it will sufier in the absence of a stay. Empirical and scientific evidence, as held in Samvir Trustees Limited -vs- Guardian Bank Limited [2000] eKLR, is what the court deals with or what is more probable than the other when faced with a case of stay of execution. 24. The supporting afidavit of Rhoda Arupe, instead of concentrating on substantial loss, make spurious allegation that the trial court had a pre-determined mind, overlooked the circumstances and the consequences of its decision, inconvenienced and prejudiced the estate, the estate has been embarrassed by the injustice, there is high risk of imminent and irrecoverable loss, there will be irreversible damage and the appeal herein will be rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2977/eng@2026-05-14 3

page 3 of 6

25. In Mbogo -vs- Mbogo Civil Appl. No. E054 of 2025 [2026] KECA 319 [KLR] (27th February 2021) (Ruling), the intended appeal was against an order dismissing the applicant’s appeal after it found it bereft of merit. 26. A prayer for injunction had been sought, which was poorly drafted. The court cited Stanley Kangethe Kinyanjui -vs- Tony Ketter & Others [2013] eKLR, on the grounds to be satisfied that the intended appeal is arguable and that, unless the order of injunction is granted, the appeal will be rendered nugatory. 27. The court said nugatory is a consideration to ensure that an arguable appeal is not reduced to a paper judgment, if it succeeds and that the court seeks to hold things constant, so that a successful appellant does not find that at the end of the day, all his efiorts were in vain because the property he was claiming has long gone to third parties and is totally beyond his reach. Therefore, turning to the supporting afidavit of the applicant, she has to show genuine apprehension that if the appeal succeeds without some of the protections, indeed, the appeal risk being rendered nugatory. 28. The power to grant a stay of execution or temporary injunction pending appeal, as held in Butt vs- Rent Restriction Tribunal [1079] eKLR, Machira t/a Machira & Co Advocates -vs- East African Standard [2002] 2 KLR 63, is discretionary in nature. 29. The purpose, as held in RWW -vs- EKW [2019] eKLR, is to preserve the subject matter in dispute so that the rights of the appellant are safeguarded. In doing so, the court should weigh the applicant’s rights against those of a successful litigant, who should not be deprived of the enjoyment of the fruits of his judgment. 30. In exercising its discretion, the court ensures that no party sufiers prejudice that cannot be compensated by an award of costs. Security for the due performance of the decree is a condition precedent. 31. In Mbugua -vs- Mbugua Civil Appl. No. E117 of 2025 [2026] KECA 7061 [KLR] (25th March 2026) (Ruling), the court said that an arguable appeal raises a question deserving consideration by the court. 32. Such an appeal need not be one that will necessarily succeed, but one requiring the court's consideration. The court said that the term nugatory means worthless, futile, invalid, and trifiing. 33. The court held that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. The court said that in considering whether or not an appeal will be rendered nugatory, each case must depend on its facts and peculiar circumstances. 34. Turning to and applying the foregoing caselaw, the applicant has the onus to show in the supporting afidavit, for how long she has been on the suit land, when the estate was decreed the land, what developments she has on the suit land, when the estate became seized of the land, why the estate did not participate in the suit, why the applicant who is said to have had an opportunity all along before the trial commenced and ended, did not seek to join the estate and lastly, what the loss, prejudice and inconvenience is likely to be occasioned in the absence of stay, such that her appeal will be rendered nugatory. 35. The respondent has raised critical issues that there is no appeal against the judgment rendered on 25/10/2025 and that, instead of appealing, the applicant opted to seek a review of the judgment. 36. From the material before this court, it is not disputed that the applicant had brought a counterclaim that the estate of Ali Fathil Bisbas be declared the owner of Plot No. 324. The issue of the applicant's https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2977/eng@2026-05-14 4

page 4 of 6

capacity to advance that claim was challenged by way of a reply to the defence and defence to the counterclaim dated 12/3/2019. 37. The judgment shows that Rhoda Arupe, testified as DW1, advancing the claim that her land is Plot No. 324, allocated to her husband, Ali Fadhil Bisbar. One of the issues for determination was whether Plot No. 424 and Plot No. 324 referred to the same land. The trial court found that it was a case of double allocation. 38. On the competence of the counterclaim, the trial court made a finding that, though the applicant had conceded that the allottee was her late husband, she had no letters of administration to sue or defend the suit on behalf of the estate of the deceased, Ali Fadhil Bisbas. 39. On the question of who was the lawful owner of the plot, the trial court found that the respondent’s allocation was the first in time. The applicant says that her appeal raises arguable points; that the cause of action was between the respondent and the estate of the late Ali Fadhil Bisbas. 40. Locus standi refers to standing to sue or defend in a given forum. See Alfred Njau & 5 Others -vs- City Council of Nairobi [1983] eKLR. The appellant relies on annexure marked RAL-(2). The trial court, in the ruling delivered on 16/2/2026, made a finding that the applicant lacked capacity to sue on behalf of the estate of her deceased husband. Those facts were within her knowledge and therefore could not amount to the discovery of new and important evidence that was not within her knowledge at the time the judgment was made, for her to be entitled to a review of the judgment. 41. The trial court made a finding that the person named in annexure marked RAL-(2) is her, who was an active participant in the trial, who ought to have exercised due diligence. 42. The other issue raised by the applicant as an arguable point is the law on plot allocation, guided by Torino Enterprises Limited -vs- Attorney General [2023] KESC 79 (KLR). The trial court, in its judgment and ruling, relied on Swaleh Mohamed Waziri & 3 others -vs- Houd Mohmoud Athman & another [2020] eKLR 43. In Mburu -vs- Kariuki & Another Civil Appeal No. 15 of 2020 [2026] KECA 529 [KLR] (13th March 2026) (Judgment), the court held that while the 1st respondent and the appellant held two equities, that it is a known equitable doctrine that where there are equal equities, the first in time prevails as held in Lukwago -vs- Kizza & Another [1997] 2 EA 142. In the appeal before it, it was clear that the allocation to John Njoroge, from when the 1st respondent traced his interest, was earlier in time than that of John Muchiri Mbiri, from when the appellant traced his claim 44. In Karenge & Another -vs- Mbogo & Others Civil Appeal No. 52 of 2020 [2026] KECA 714 [KLR] (25th March 2026) (Judgment), the court held that the legal framework applicable pre-2010 was the Government Land Act (repealed), the Physical Planning Act (repealed), and the Registered Land Act (repealed), on allocation of town plots. The court said that the transitional provisions of the Constitution and under the Land Registration Act stipulate that the rights, interests, titles, or obligations acquired before the commencement are to be governed by the law then in force. 45. The court cited Wreck Motors Enterprises -vs- Commissioner of Lands [1992] KECA 391 [KLR], that title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated thereon, and actual issuance thereafter of a title document pursuant to provisions held. 46. In Dr. N.K. Ngo’k -vs- Moijjo ole Keiwua & Others, Nairobi Civil Appl. No. 60 of 1997, the court held that a letter of allotment per se is nothing but an invitation to treat and confers no interest in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2977/eng@2026-05-14 5

page 5 of 6

land, to be used to defeat the title of a registered proprietor of the said land. See also Ashmi Investment Limited -vs- Riakina Limited & another [2023] KESC 66 (KLR). 47. From the cited case law, it is crystal clear that the trial court applied the current prevailing jurisprudential trends to the facts. I do not find the appeal raising any arguable points or capable of being rendered nugatory. The court can only exercise appellate jurisdiction where it is properly invoked. There was no appeal filed against the primary judgment. The appellant cannot use the dismissal of the review application as a means of attacking the said judgment through the back door. 48. The upshot is that I find the application dated 2/3/2026 incompetent, lacking merit, and an abuse of the court process. It is dismissed with costs. 49. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 14TH DAY OF MAY 2026. In the presence of: Court Assistant - Dennis Miss Mbua for Molla for the applicant present Mr. Kibet for the respondent present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2977/eng@2026-05-14 6

page 6 of 6