REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ELC CASE NO. E002 OF 2024 (O.S) EZEKIEL SIMIYU MARUTI------------------PLAINTIFF/RESPONDENT VERSUS JAMIN SAID MARUTI----------------------- DEFENDANT/APPLICANT RULING 1. What is before the court is an application dated 8/4/2026, seeking a stay of execution of the ruling delivered on 18/3/2026. The reasons are contained ORIGINAL COPY on the face of the application and in a supporting affidavit of Nyakundi George Stephen, counsel for the applicant, sworn on the even date. 2. It is deposed that the applicant, being aggrieved by the decree and the ruling of the court, has filed a notice of appeal dated 23/2/2026, and applied for certified copies of the proceedings as per annexure marked EX-JSM-1(a) and (b). 3. The applicant deposes that unless the application is allowed, there will be execution of the decree and transfer of the land, rendering the appeal nugatory. RULING: KITALE ELC NO. E002 OF 2024 (OS) - D.O.D. – 01/07/2026 1
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4. The deponent states that the respondent will suffer no prejudice, unlike the applicant, who will suffer irreparable loss and damage. 5. The applicant deposes through his lawyer that he is ready and willing to abide by any directions of the court on security; otherwise, he has filed the application without inordinate delay. 6. The application is opposed through a replying affidavit sworn by Ezekiel Simiyu Maruti on 22/4/2026 as a gross abuse of the court process. 7. An application seeking a stay of execution has to meet the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules. The ruling of the court, leading to a notice of appeal dated 23/3/2026, ORIGINAL COPY dismissed the applicant’s application dated 18/11/2025 for review, variation, and setting aside the judgment dated 24/9/2025, to adduce more evidence. The court has not been informed whether there is a pending appeal against the judgment or its resultant decree. 8. It is a general principle of law that a stay of execution cannot be ordered against negative orders. By dismissing the applicant’s application mentioned above, the court did not grant any positive order in favour of the respondent capable of execution. RULING: KITALE ELC NO. E002 OF 2024 (OS) - D.O.D. – 01/07/2026 2
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9. An order of stay of execution ordinarily is an interim order that seeks to delay the performance of a positive obligation that is set out in a decree as a result of a judgment or a ruling. That is what is presupposed to be a positive order. 10. In Republic -vs- The Commissioner Investigation and Enforcement; Ex for parte Wananchi Group of (K) Ltd [2014] eKLR, the court had dismissed a judicial review application. The court said that a stay of execution was not available in those circumstances. The deponent deposes that without a stay, the intended appeal will be rendered nugatory. 11. In the National Assembly & Another -vs- Okiya ORIGINAL COPY Omtatah Okoiti & Others Civil Appl. No. 6577 of 2023, the court cited Kangethe Kinyanjui -vsTony Keter & Others [2013] eKLR, that nugatory must be given its full meaning. The court declined to review, set aside, or vary its earlier judgment. How the intended appeal against that refusal will be rendered futile, invalid, or useless has not been demonstrated through tangible and cogent evidence. The dismissal gave no advantage to the respondent. After all, the judgment remains unchallenged on appeal. RULING: KITALE ELC NO. E002 OF 2024 (OS) - D.O.D. – 01/07/2026 3
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12. As to security, the same has to be offered as a sign of good faith as held in Arun C. Sharma -vsAshana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR. It is not enough to state that a party is willing to abide by any conditions the court may impose as to security. It is for the applicant to meet the conditions under Order 42 of the Civil Procedure Rules in a distinct, separate, and sequential manner. 13. The ruling was delivered on 18/3/2026, while this application was filed on 8/4/2026. The law firm that has filed the same has not complied with Order 9 Rule 9 of the Civil Procedure Rules. 14. It is not enough to file a consent without seeking its ORIGINAL COPY endorsement by the court after it has been served upon all the parties to the matter. The law has not set out a maximum or minimum delay. It all depends on the circumstances of each suit. 15. The court is being asked to stay the execution of the decree issued on 24/9/2025 in April 2026. It is alleged that there is a likelihood of a change of title to the land. No recent official search certificate has been availed. Evidence of any development or improvement on the applicant’s land is missing. RULING: KITALE ELC NO. E002 OF 2024 (OS) - D.O.D. – 01/07/2026 4
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16. The deponent to the application is unable to substantiate all three conditions under Order 42 Rule 6 of the Civil Procedure Rules. 17. The application is therefore dismissed with costs for being both incompetent and lacking merit. 18. File marked closed. 19. Orders accordingly. Ruling dated, signed and delivered via Microsoft Teams/Open Court at Kitale on this 24th day of June 2026. In the presence of: Court Assistant - Dennis No appearance for the parties ORIGINAL COPY HON. C.K. NZILI JUDGE, ELC KITALE. RULING: KITALE ELC NO. E002 OF 2024 (OS) - D.O.D. – 01/07/2026 5
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