Trustees of the Catholic Diocese of Kitale v Solmat Enterprises of Kitale & another (Environment and Land Case 71 of 2020) [2026] KEELC 4986 (KLR)

also known as L.R. No. Kitale Municipality Block 3/333, has been fenced off and may be dealt with adversely, hence rendering appropriate orders of stay necessary, pending the hearing of the application as well as the appeal. 4. The applicant deposes that counsel had been indisposed and was not in a position to file the application earlier. That the intended appeal has merits and a high chance of success; hence, it is necessary for this court to issue stay orders of execution to prevent the appeal from being rendered nugatory. 5. The applicant contends that there is no prejudice likely to be occasioned to the respondents if the court grants the orders sought. The applicant deposes that the application meets the threshold for issuance of the stay orders. 6. Learned counsel for the applicant, as the deponent of the affidavit, avers that the court dismissed the suit without serving a notice to her and rendered the ruling on 24/3/2026. Copies of the application dated 25/11/2025, the impugned ruling, the notice of appeal and photographs showing the fence on the suit land are annexed and marked as A-D. RULING: KITALE ELC NO.71 OF 2020 -D.O.D- 31/7/2026 2

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7. Further, learned counsel deposes that she has been indisposed and admitted to hospital severally; hence she could not have filed the application earlier. 8. Directions issued by the court consolidating this suit with Kitale ELC No. 33 of 2021 have been attached as annexure marked E, while the memorandum of appeal is marked F. Again, the deponent deposes that justice, fairness, equity and the balance of convenience tilt towards allowing the application as prayed. 9. Service on the respondents is evidenced by the return of service on record dated 14/5/2026, 16/6/2026 and 3/7/2026. However, the respondents did not attend court nor file any responses to the application. 10. On 13/7/2026, the court granted a stay pending the determination of this application. Therefore, what is pending for determination is prayer (c) on whether to grant stay orders, pending the appeal. 11. Order 42 Rule 6 of the Civil Procedure Rules requires an applicant seeking a stay of execution pending appeal to demonstrate that: i. Substantial loss may result to the applicant unless the order is made. ii. The application is made without unreasonable delay. RULING: KITALE ELC NO.71 OF 2020 -D.O.D- 31/7/2026 3

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iii. Security for the due performance of such decree or order as may ultimately be binding on him. 12. The sole purpose of a stay of execution is to preserve the status quo pending the hearing of an appeal. In RWW -vs- EKW [2019] eKLR, the court observed that: “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory.” 13. In Butt -vs- Rent Restriction Tribunal [1979] eKLR, the Court of Appeal observed that the grant or denial of stay orders is at the discretion of the court. The court should exercise such discretion to prevent an appeal from being rendered nugatory; stay orders should not be denied because better remedies exist, and that a court must consider the special circumstances and order security for costs. The court also held that failure to provide the security as ordered may result in a lapse of the stay orders. 14. Substantial loss is a qualitative concept rather than a mathematical formula, one that is of real value and not merely nominal, as held by Ogolla, J in Tropical RULING: KITALE ELC NO.71 OF 2020 -D.O.D- 31/7/2026 4

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Commodities Suppliers International Credit Ltd Bank Ltd & (in Others -vs- liquidation) [2004] 2 EA 331. Further, in James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR, the court held that execution is a lawful process and does not amount to substantial loss. 15. An applicant must demonstrate how an execution will create a state of affairs that will irreparably affect or negate the very essential core of it as the successful party in the appeal. 16. Turning to the application before me, I note that there is no affidavit evidence challenging the averments by the applicant. This is in spite of the court making an order that the respondents be served physically and return of service filed. The court’s inclination is to allow the application in the circumstances of the case, which I hereby do. 17. The application dated 11/5/2026 is thus allowed with no orders as to costs given that no response was filed thereto. 18. Orders accordingly. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 31st day of July 2026. RULING: KITALE ELC NO.71 OF 2020 -D.O.D- 31/7/2026 5

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In the presence of: Court Assistant: Matui/Nancy Ms. Isiaho for the 1st plaintiff/applicant N/A for the 1st defendant N/A for the 2nd defendant HON. G.M. GITONGA JUDGE, ELC KITALE. RULING: KITALE ELC NO.71 OF 2020 -D.O.D- 31/7/2026 6

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