Masarare v Mwita (Environment and Land Appeal E007 of 2026) [2026] KEELC 5350 (KLR)

Applicant vacate voluntarily, failing which eviction would follow, in accordance with the law. 3. That 60-day period lapsed on 30 th May 2026. The Applicant, being dissatisfied, lodged a Memorandum of Appeal before this Court, on 30tth April 2026. He thereafter filed the instant application on 18th June 2026. He sought in it a stay of execution of the Judgment of the trial Court pending the hearing of both the Application and Appeal. 4. The Respondent opposed the application by a Replying Affidavit. He also filed a Notice of Preliminary Objection. Both parties made oral submissions, which this Court has considered together with the pleadings and affidavits on record. The Applicant's Case 5. The Application was supported by the Affidavit of the Applicant, Chacha Masarara, which he swore on 18 th June 2026. 6. He deponed that on 31st March 2026, the trial court entered judgment against him in MCELC/E009/2025. It granted him a stay of execution for 60 days while ordering that he be evicted in accordance with the law upon the lapse of the period. He annexed a copy of the Judgment and marked it "CM1". RULING ELCLA NO. E007 OF 2026 2

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7. He further deponed that he was dissatisfied with the Judgment. He had accordingly filed an Appeal before this Court. He annexed the Memorandum of Appeal, and marked it as "CM2". He deponed that the Appeal raised, among other grounds, that the trial magistrate erred in failing to appreciate that the court lacked jurisdiction; the suit was res judicata; the Respondent was guilty of material nondisclosure of a prior related suit; the impugned title was fraudulently obtained; and the trial court failed to take judicial notice that a deceased person's title could not lawfully be transferred within two months of his death. 8. He deponed further that the Respondent had filed several suits in various courts touching on the same subject matter. He did not disclose their existence. That this failure amounted to material non-disclosure before the trial court. 9. He deponed that he had been in occupation of the suit property for a long period. Further, his home was built thereon. He risked demolition of his houses and irreparable loss and damage should execution proceed before his appeal was heard. He deponed that he had been informed, and verily believed it, that the Respondent was preparing to demolish the houses on the suit property. 10. He deponed that his Appeal had a high chance of success. It needed to be ventilated before execution proceeded. It RULING ELCLA NO. E007 OF 2026 3

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would be prudent for this Court to grant a stay of execution pending the hearing and determination of the appeal. The Respondent's Case 11. The Respondent opposed the application by a Replying Affidavit sworn by him on 7th July 2026. He did not have any annexures attached to it. 12. He deponed that the application was misconceived and an abuse of the process of the Court. Further, it intended only to delay and obstruct him from enjoying the fruits of a lawful Judgment. 13. He deponed that on 31st March 2026 the trial court delivered a considered Judgment in his favour in Kehancha ELC Case No. E009 of 2025. By it the Court ordered the Applicant to vacate the suit property. That the sixty (60) days granted therein was merely a grace period for voluntary compliance. He deponed that it did not constitute an order of stay of execution pending appeal, under Order 42 Rule 6 of the Civil Procedure Rules. 14. He deponed further that despite the ample time afforded, the Applicant neither vacated the suit property nor applied at the trial court for stay of execution pending appeal before expiry of the 60-day period. He deponed that the Applicant only approached this Court on 18th June 2026, after the RULING ELCLA NO. E007 OF 2026 4

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period had lapsed and execution had become imminent, without any reasonable explanation for the delay. 15. He deponed that the Applicant had not demonstrated substantial loss, as the risk of eviction was merely the natural consequence of the Judgment lawfully entered after a full hearing. He categorically denied the allegation that he had filed multiple undisclosed suits touching on the same subject matter. He termed the depositions false and unsubstantiated. He deponed that, in any event, questions of res judicata and non-disclosure were matters for determination by the trial court. They do not, by themselves, justify a stay of execution. 16. He deponed that he had, at all times, acted lawfully to enforce a valid Judgment. He had been kept out of the use, possession and enjoyment of his property for a considerable period despite having successfully prosecuted his claim. He deponed that further delay continued to occasion him prejudice. 17. He deponed that the Application was not brought in good faith, but was intended to prolong the Applicant's continued occupation of the suit property. Further, the Applicant's own conduct, in failing to act promptly, was inconsistent with a genuine apprehension of irreparable loss. He deponed that the Applicant had come to court after sleeping on his rights. RULING ELCLA NO. E007 OF 2026 5

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Also, that equity does not aid the indolent. He prayed that the Application be dismissed with costs. Preliminary Objection 18. The Respondent further raised a Preliminary Objection, dated 7th July 2026. By it, he sought to have the Application struck out or dismissed on four grounds. 19. First, that the firm of M.N. Oonge & Co. Advocates was improperly on record for the Applicant, having come on record after delivery of judgment without seeking or obtaining leave of court. That this was contrary to Order 9 Rule 9 of the Civil Procedure Rules. 20. Second, that in the absence of such leave, all pleadings and Applications filed by that firm were incompetent and bad in law. 21. Third, that the Application for stay ought to have been presented, in the first instance, before the trial court in accordance with Order 42 Rule 6(1) of the Civil Procedure Rules. 22. Fourth, that the Application before this Court was, consequently, incurably defective and ought to be struck out with costs. Applicant's Submissions RULING ELCLA NO. E007 OF 2026 6

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23. Learned counsel for the Applicant submitted that Order 42 Rule 6(1) of the Civil Procedure Rules conferred on this Court Jurisdiction to grant a stay of execution, whether or not a prior Application had been made before the trial court. He submitted, and thereby expressly admitted, that no Application of a similar nature had been filed in the lower court first. He argued that this was on the premise that this Court independently held Jurisdiction under the Rules to entertain the application of this nature in the first instance. 24. He submitted that the second limb of Order 42 Rule 6 of the Civil Procedure Rules conferred Jurisdiction on this Court to make an order of stay. Accordingly, it was unnecessary to have first moved the trial court. He submitted further that Order 42 Rule 6(6) of the Civil Procedure Rules empowered this Court to grant an order of injunction. Further, that the Applicant sought stay pending the Appeal already instituted, a record of appeal having been filed. Counsel urged the Court to hear the Application on its merits. Respondent's Submissions 25. Learned counsel for the Respondent opposed the Application and pressed the Preliminary Objection. She submitted that the application amounted to an abuse of the process of the Court. RULING ELCLA NO. E007 OF 2026 7

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26. She submitted that an Applicant seeking stay of execution was required, in the first instance, to move the trial court. That this Court's Jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules is one of review of an order made or declined, by the court appealed from, and not one of first instance. She submitted, accordingly, that the application was improperly before this Court, the Applicant not having followed the proper procedure. She relied on Ouma v Makokha [2025] KEHC 6202 (KLR), for the proposition that an Applicant who had not first moved the trial court could not properly invoke the Jurisdiction of the appellate court under Order 42 Rule 6. 27. She submitted further that the Applicant had, in any event, failed to comply with the conditions set out under Order 42 Rule 6 of the Civil Procedure Rules. Accordingly, he was not entitled to the orders sought. She submitted that no decree had been extracted or filed. That the mere filing of an Appeal, without more, did not entitle a party to an order of stay. She prayed that the Application be dismissed with costs. Analysis and Determination 28. Having considered the Notice of Motion, the Supporting and Replying Affidavits, the annexures thereto, the Preliminary Objection, the rival submissions, the authorities cited and RULING ELCLA NO. E007 OF 2026 8

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the relevant law, the following issues commend themselves for determination: a) Whether the Preliminary Objection is merited; b) Whether the application was properly before this Court, the Applicant having not filed a similar one first in the trial court; c) What order this Court should make, including as to costs. 29. I address these sequentially, mindful that if the second issue is answered in the negative, it will be unnecessary to delve into the substantive merits of the instant application. a) Whether the Preliminary Objection is merited 30. The Objection raised two distinct grounds, which I address in turn. 31. The first ground was that M.N. Oonge & Co. Advocates came on record for the Applicant without leave of court, contrary to Order 9 Rule 9 of the Civil Procedure Rules. This is a serious procedural step which many courts have regarded as not a mere technicality. I too ascribe to that school of thought. 32. Order 9 Rule 9 of the Civil Procedure Rules Provides that; “When there is a change of advocate, or when a party decides to act in person having previously engaged an RULING ELCLA NO. E007 OF 2026 9

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advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court— a) upon an application with notice to all the parties; or b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party”. 33. The threshold question, however, is not merely whether the Rule was complied with, but whether it applies at all to counsel newly instructed to prosecute a related matter to the one judgment has been delivered, such as an appeal, being a matter filed in an (different) appellate court. This was authoritatively settled by the Court of Appeal in Tobias M. Wafubwa v Ben Butali [2017] eKLR (KECA 142), where the Court held: “Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable... Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from RULING ELCLA NO. E007 OF 2026 10

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the concerned court to be placed on record in substitution of the previous advocate.” 34. This application is filed in this appeal. This Appeal has not been determined or not judgment has been entered it the instant appeal. The Appeal was lodged against a decision of the Magistrate's Court at Kehancha. The Environment and Land Court at Migori is a superior court of record exercising distinct Appellate Jurisdiction from that of the subordinate court. It is squarely the scenario contemplated in the Wafubwa case (supra). The commencement of new proceedings in another court and not a continuation of the proceedings before the trial court means a new matter is in Court. 35. In the instant case therefore, the Applicant was accordingly entitled to instruct M.N. Oonge & Co. Advocates to file the Memorandum of Appeal, without seeking leave of this or any other court or filing a Notice of Change of Advocates in the previous or instant matter. This holding has been applied at the level of this Court in Tom L Wanambisi v Dickson W Babandege & 2 others [2022] KEELC 811 (KLR), of which I am persuaded, where it was held, following the Wafubwa decision (supra), that a party commencing an Appeal is free to engage new counsel without a notice of change or leave of the appellate court. It was equally applied on facts closely mirroring these in Mathenge v Nyingi RULING ELCLA NO. E007 OF 2026 11

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(Civil Appeal 3 of 2017) [2022] KEHC 16190 (KLR), where the High Court, faced with an identical objection that incoming counsel for an appellant had not sought leave under Order 9 Rule 9, held that “an appeal is a separate and independent suit that is not bound by the restrictions under Order 9 Rule 9 of the Civil Procedure Rules,” and dismissed that ground of objection. 36. I have considered the decisions such as Archer & another v Archer & 2 others [2024] KEELC 7068 (KLR) and Wakesho v Aroma Cafe [2014] KEIC 826 (KLR) each insisting on strict compliance with Order 9 Rule 9. None of them, however, concerned an advocate newly instructed solely to prosecute a fresh Appeal before a different, superior court. They concerned a change of counsel within continuing proceedings before the same court, such as applications for review or execution, which the Wafubwa (supra) holding itself expressly preserves as falling within the Rule. To the extent that these decisions of concurrent jurisdiction ought to be read more broadly, this Court, as a matter of stare decisis, is bound to follow the position stated by the Court of Appeal in the Wafubwa (supra) decision on the specific question of Appeals. Thus, the first ground of the Preliminary Objection accordingly fails. The firm of M.N. Oonge & Co. Advocates is properly on record for the Applicant in this Appeal. RULING ELCLA NO. E007 OF 2026 12

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37. The second ground of the Preliminary Objection was that the Application ought to have been presented, in the first instance, before the trial court under Order 42 Rule 6(1) of the Civil Procedure Rules. This ground will be sufficiently addressed below as it touches on the substance of this Application. b) Whether the application was properly before this Court 38. The conditions necessary for the grant of an order for stay of execution pending appeal by an appellate court of this level are laid out in Order 42 Rule 6(1) and (2) of the Civil Procedure Rules . It provides that: “6.(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient 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. RULING ELCLA NO. E007 OF 2026 13

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(2) No order for stay of execution shall be made under sub-rule (1) unless: a) the court is satisfied 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.” 39. The import of the above is that the primary and first-instance jurisdiction to stay execution of a decree or order accordingly vests in the court that issued it. In regard to the instant proceedings, it was the Magistrate's Court at Kehancha which should have been approached first. 40. Learned counsel for the Applicant's submission, that this Court holds an unconditional, first-instance Jurisdiction under the Rule regardless of whether the trial court was ever moved or not. In my humble view, this does not accord with the plain wording or grammatical reading of Order 42 Rule 6(1). The Jurisdiction of the appellate court under the Rule is loosely to be seen as supervisory. It comes into play, and the Court therefore exists, to review what the trial court has ordered conditionally, done or declined to do, upon a proper application RULING ELCLA NO. E007 OF 2026 14

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being presented to it. It was not intended to act as a parallel or alternative forum of first resort, to be invoked at the Applicant's convenience in place of the trial court. To do so would encourage forum shopping, so much so that if a party feels they do not like the trial court they would jump straight to the appellate court but if they hold a similar view on the appellate court they then would try their luck in the appellate court first. This should not be encouraged by courts at all. There ought to be certainty in the procedure and application of the law. 41. This accords with the position taken in Ouma v Makokha [2025] KEHC 6202 (KLR), cited by counsel for the Respondent. It was to the effect that a party who has not moved the trial court for stay cannot, without more, properly invoke the Jurisdiction of the appellate court in the first instance. It is the same position as this Court held, in Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2023] KEELC 21845 (KLR) (24 November 2023) (Ruling), as follows: “18. The above Rule is to the effect that before an Appellant aggrieved by an order or decree of a subordinate Court moves the Appellate Court either on a first appeal (where the appeal is first) or on a second appeal (where the appeal is preferred as a second one in case there was an earlier one to a RULING ELCLA NO. E007 OF 2026 15

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Court subordinate to the Superior Court) moves the Superior Court for stay of proceedings or execution he/she/it should have moved the court appealed from for similar orders. This is not optional but a compulsory step. Only upon fulfilment of that step shall the Superior Court be seized of jurisdiction to handle an application for stay of proceedings or execution. This is clearly provided for in the subRule that “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.” 19. From the above provision, an Appellant can only apply to the Appellate Court to set aside the order (of stay of execution or proceedings) of the Court appealed from if he/she/it is aggrieved by such an order. It means further that he/she/it or the adverse party must have moved the subordinate Court, the Court shall have rendered itself on the application, and the party is aggrieved by the decision of that Court and moves the Appellate Court. An appellant ought not and should never side-step the subordinate court and attempt successfully to move the appellant for orders he/she should have sought formally in that court. This is akin to forum shopping and a direct call for a breakdown of the RULING ELCLA NO. E007 OF 2026 16

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rule of law. Laws are enacted for the proper ordering of and to avoid arbitrariness in actions of people in society. While rules of procedure are not to be mistresses to stress and commandeer or constrain free moral agents of reason they were designed for orderliness, fairness and justice. It would be a dark day for judges and judicial officers to encourage infractions of the law which they took oath to uphold.” 42. It is a similar view in Mwangi v Mokaya (Environment and Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022) (Ruling) where this Court held that: “A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the most important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this RULING ELCLA NO. E007 OF 2026 17

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step, the application filed for stay of execution or proceedings directly to the appealed to is improper.” 43. It is common ground that the Applicant never moved the trial court for stay of execution at any point between the delivery of Judgment on 31st March 2026 and the lapse of the 60-day grace period on 30th May 2026. No explanation for this omission appears in the Supporting Affidavit. The Applicant instead approached this Court directly on 18 th June 2026, nineteen days after the period had lapsed. This was, on the Respondent's uncontroverted account, only after execution had become imminent. 44. Given these findings, I find that the Applicant has not complied with Order 42 Rule 6 of the Civil Procedure Rules. The application must fail on account of it being premature and therefore incompetent. 45. As I approach the conclusion, I address further one issue that learned counsel for the Applicant raised in submission. Learned counsel purported reliance on Order 42 Rule 6(6) of the Civil Procedure Rules, to argue that it conferred Jurisdiction on this Court to grant an injunction. This Court is of the view that whereas Order 42 Rule 6 contains subrule (6) which confers Jurisdiction upon this Court to grant an injunctive relief the application before me did not contain a prayer for injunction, or at all. The subrule cannot, therefore, form the RULING ELCLA NO. E007 OF 2026 18

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basis of conferment of jurisdiction to this court without the appellant first approaching the lower court. The submission by the appellant is thus misconceived and must be rejected as it has been done. 46. Accordingly, I strike out the application on account of I being prematurely before this Court. However, I grant a conditional stay of execution of the Judgment and decree of 31 st March 2026 in Kehancha ELC Case No. E009 of 2025, for a period of fifteen (15) days from the date of this Ruling. This stay is granted solely to enable the Applicant to elect either to properly move the trial court under Order 42 Rule 6(1) for the appropriate orders or let the matter end where it has. Should the Applicant fail to move the appropriate court in time, the stay granted herein shall lapse automatically, without any further reference to this Court. 47. Further, the Appellant is directed to file a Record of Appeal within thirty (30) days from the date of this ruling, in default the appeal be struck out without a further application. But since Mr. Oonge Advocate now informs this Court, at the delivery of this Ruling that he filed the Record of Appeal already, his is directed to serve it. Further also, the Respondent has leave, within the next fifteen (15) days, to make any relevant application regarding the compliance with or competence of the Record of Appeal in relation to the Civil Procedure Rules. RULING ELCLA NO. E007 OF 2026 19

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48. Under Section 27 of the Civil Procedure Act, costs follow the event. The application has been lost but for reason of the applicant’s misapprehension of the law but also that the appellant has endeavored to move this court fast, each party shall bear its own costs. 49. This Appeal is hereby admitted to hearing and shall be heard by way of written submissions on 29th October, 2026. Meanwhile, the appellant has up to 12 th of September 2026 to file and serve written submissions, and the Respondent to submit by 12th October 2026. 50. It is so ordered. Ruling dated, signed and delivered virtually via the Teams Platform this 12th day of August 2026. Hon. Dr. iur Nyagaka, Judge From 10:07 AM in the presence of, Mr. Oonge Advocate for Appellant Ms. Kemunto Advocate for Respondent RULING ELCLA NO. E007 OF 2026 20

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