Okello & 6 others v Letting alias Kokwa & another

1. The 1st to 7th Plaintiffs (hereinafter referred to as “the 1st to 7th Applicants”) did file a Notice of Motion Application dated 26.02.2026 against the 1st and 2nd Defendants (hereinafter referred to as “the 1st and 2nd Respondents”) seeking for the following Orders; A. THAT THE APPLICATION BE CERTIFIED URGENT AND HEARD EX-PARTE ON THE 1ST INSTANCE. B. THAT THERE BE AN INTERIM ORDER OF STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THIS APPLICATION. C. THAT THERE BE STAY OF EXECUTION PENDING THE HEARING AND DETERMINATION OF THE INTENDED APPEAL. D.COSTS OF THE APPLICATION BE PROVIDED FOR. 2. The facts in support of the prayers hereinabove are outlined in the body of the present Application as well as the Supporting Affidavit of the 1st Applicant dated 26.02.2026 and can be summarized as follows; i)The Court herein did issue an Order dated 18.02.2026 pursuant to a Site Visit on the suit property on the 26.01.2026. ii) 1st to 7th Applicants herein are aggrieved by the Order made by this Court on the 18.02.2026 and have filed a Notice of Appeal expressing their intention to Appeal the same to the Court of Appeal. iii)The 1st to 7th Applicants did further plead that based on the Ruling made on the 18.02.2026, the 1st Respondent herein did invade the 1st to 7th Applicants portions of land and did unlawfully demolish the various structures that were the subject of this proceeding. ELC.136 of 2015 RULING 2

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iv)The 1st to 7th Respondents were of the view that the Order issued on the 18.02.2026 were in contradiction of earlier Orders issued on the 04.12.2015 which did direct that Status Quo as at the time the same were issued should be maintained. v) The 1st to 7th Respondents did plead that the 1 st Respondent’s actions of demolishing and/or destroying the various developments of the portions which they occupy within the suit property was in contempt of the Orders issued on the 04.12.2015. vi)As a result of the 1 st Respondent’s actions, the 1st to 7th Respondents have lost faith in the judicial system due to the manner in which the 1st Respondent is acting in bad faith and total disregard of the Order issued on the 04.12.2015 and/or the law. vii) The 1st to 7th Applicants therefore sought this Court to grant the prayers in the present Application pending the hearing and determination of their intended Appeal against the Order issued on the 18.02.2026. 3. The present Application was duly served on the 1 st and 2nd Respondents herein. 4. The 1st Respondent did oppose the present Application through a Replying Affidavit dated 22.04.2026. 5. In the Replying Affidavit dated 22.04.2026, the 1 st Respondent did plead the following facts in response to the present Application; - a) The 1st Respondent did confirm the existence of the Orders issued on the 18.02.2026 by this Court. ELC.136 of 2015 RULING 3

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b) According to the 1st Respondent, the Orders issued on the 18.02.2026 were premised on a Site Visit by the Court to ascertain the occupation and/or use of the various portions claimed by the 1st to 7th Applicants on the suit property. c) The 1st Respondent did state that the Orders issued by the Court on the 18.02.2026 were that those who were in occupation of their portions of land do remain on the same and those not residing or in occupation of their portions do remain outside until the matter is heard and determined. d) Consequently, the Orders issued on the 18.02.2026 are not capable of being stayed as they did not alter any of the 1 st to 7th Applicants use and/or occupation of their portions of land within the suit property. e) The 1st Respondent did deny the allegation that he was the person responsible for the demolition of any structures being claimed by the 1st to 7th Applicants. f) The 1st Respondent did further deny the allegation that he was in contempt of the Orders issued by this Court either on the 04.12.2015 or the 18.02.2026. g) The 1st Respondent was of the view that the present Application was an attempt by the 1 st to 7th Applicants to forestall the hearing and determination of the main suit herein to his detriment and that of the 2nd Respondent. h) As such, the 1st Respondent did ask the Court to dismiss the present Application with costs. 6. The 2nd Respondent herein did not file any documents in opposition to the present application. 7. The 1st to 7th Applicants upon service of the 1st Respondent’s Replying Affidavit did file a Further Affidavit dated 25.05.2026 in response. ELC.136 of 2015 RULING 4

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8. The 1st to 7th Applicants in their Further Affidavit dated 25.05.2026 did state as follows; a) The 1st to 7th Applicants had a right in law to appeal against any determination by the Court which they are aggrieved with. b) The 1st to 7th Applicants did further deny the allegation that the main suit before the Court had been dragging because of their actions. c) The 1st to 7th Applicants did plead that they had suffered due to the actions of the 1st Respondent demolishing their structures and/or developments on the portions they occupy through goons. d) In conclusion, the 1st to 7th Applicants sought this Court to grant the prayers sought in the present Application. 9. Upon filing of the Further Affidavit dated 25.05.2026, the Court did direct that the present application would be heard by way of written submissions. 10. The 1st to 7th Applicants unfortunately did not file any submissions in support of the present application. 11. On the other hand, the 1st Respondent did file their written submissions dated 11.06.2026. 12. The Court has therefore carefully perused the present application, the response from the 1st Respondent, the Further Affidavit by the 1st to 7th Applicants as well as the submissions thereof and identifies the following issues for determination; ISSUE NO.1- WHAT WERE THE ORDERS ISSUED ON THE 18.02.2026 BY THIS COURT? ELC.136 of 2015 RULING 5

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ISSUE NO.2- WERE THE ORDERS ISSUED ON THE 18.02.2026 IN CONTRADICTION WITH THE ORDERS ISSUED ON THE 04.12.2015? ISSUE NO.3- ARE THE 1ST TO 7TH APPLICANTS HEREIN ENTITLED TO AN ORDER OF STAY OF EXECUTION OF THE ORDERS ISSUED ON 18.02.2026? ISSUE NO.4- IS THE PRESENT APPLICATION MERITED OR NOT? ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION? 13. The issues for determination having been duly pointed out above, the same will now be discussed below. ISSUE NO.1- WHAT WERE THE ORDERS ISSUED ON THE 18.02.2026 BY THIS COURT? 14. The first issue for determination is to identify the Orders issued by this Court on the 18.02.2026 which the 1 st to 7th Applicants are seeking Stay of Execution of from this Court. 15. For avoidance of doubt, the Order issued on the 18.02.2026 in this file was as follows;“ 1. THE APPLICATION DATED 18.12.2025 WILL BE HEARD ON 24.03.2026. ELC.136 of 2015 RULING 6

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2. THE 1ST AND 2ND DEFENDANTS ARE GRANTED LEAVE TO FILE ANY RESPONSE TO THE SAID APPLICATION. 3. THE APPLICANT WILL HAVE LEAVE OF 7 DAYS UPON SERVICE OF THE 1ST AND 2ND DEFENDANT AND THE INTENDED 3RD DEFENDANT RESPONSES TO FILE A FURTHER AFFIDAVIT THEREOF. 4. BASED ON THE GROUND VISIT ON THE 26.01.2026, THE COURT HEREBY DIRECTS THAT THE 1ST AND 3RD PLAINTIFFS HEREIN BE AND ARE HEREBY PROHIBITED FROM ENTERING, OCCUPYING AND/OR DEALING WITH THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE SUIT.” 16. The above Orders were duly extracted by the Deputy Registrar, Environment and Land Court, Eldoret on the 19.02.2026. ISSUE NO.2- 18.02.2026 IN WERE THE ORDERS CONTRADICTION ISSUED WITH THE ON THE ORDERS ISSUED ON THE 04.12.2015? 17. The second issue for determination was whether the Orders issued by this Court on the 18.02.2026 are in contradiction with the earlier Orders issued on the 04.12.2015. 18. Once again, for avoidance of doubt, the earlier Orders issued on the 04.12.2015 were as follows; - ELC.136 of 2015 RULING 7

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“ 1. THAT BY CONSENT THE PARTIES DO COMPLY ORDERS OF THE CIVIL PROCEDURE RULES WITHIN 30 DAYS. 2. THAT THE MATTER BE FAST TRACKED FOR HEARING. 3. THAT THE MATTER BE MENTIONED ON THE 29.01.2016 TO CONFIRM COMPLIANCE. 4. THAT THE STATUS QUO BE MAINTAINED ON THE SUIT PARCEL OF LAND. 5. THAT NO DEALING BY THE LAND REGISTRAR UASIN GISHU COUNTY IN RESPECT OF THE PARCEL OF LAND NAMELY ELDORET/MUNICIPALITY BLOCK 24(KIPKENYO)/176.” 19. The 1st to 7th Applicants herein did plead in the present Application that the Orders issued by this Court on the 18.02.2026 were in contradiction with the Orders issued by the same Court on the 04.12.2015. 20. The 1st Respondent on the other hand did plead that the Orders issued on the 04.12.2015 had in fact lapsed on the 04.12.2016 and therefore were not valid and/or binding on the parties herein. 21. Based on this position, the 1 st Respondent did submit that there was no contradiction of the Orders issued on the 18.02.2026 with those issued on the 04.12.2015. ELC.136 of 2015 RULING 8

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22. The Court has indeed looked at the two Orders issued on 04.12.2015 and 18.02.2026 carefully. 23. First and foremost, the legality of the Orders issued on the 04.12.2015 has been exhaustively discussed in the Ruling of the Application dated 20.02.2026 which has been earlier delivered. 24. In the Court’s Ruling dated 16.09.2026 of the Application dated 20.02.2026, the Court did make a finding that the Orders issued on the 04.12.2015 did lapse on the 04.12.2016 by effluxion of time as the same were never extended prior to and/or within the lapse of twelve months after their issuance as provided under Order 40 Rule 6 of the Civil Procedure Rules, 2010. 25. In other words, the Orders of 04.12.2015 no longer existed after 04.12.2016 and were not binding on any party in this suit. 26. As such, as at the 18.02.2026 when the Orders which are being sought to be stayed were issued, there were no valid and/or binding Orders that were in existence and specifically those issued on the 04.12.2015 in the file that would have been contradicted by the Orders issued on the 18.02.2026. 27. In essence, this Court hereby makes a finding that the Orders issued on the 18.02.2026 were not in contradiction with the Orders issued on the 04.12.2015. ISSUE NO.3- ARE THE 1ST TO 7TH APPLICANTS HEREIN ENTITLED TO AN ORDER OF STAY OF EXECUTION OF THE ORDERS ISSUED ON 18.02.2026? 28. The third issue for determination is whether or not the 1 st to 7th Applicants have demonstrated sufficient grounds for an ELC.136 of 2015 RULING 9

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Order of Stay of Execution of the Order issued on the 18.02.2026. 29. An Order For Stay of Execution pending Appeal is premised on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010. 30. The provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 in particular state as follows; “ (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 a decree or order as may ultimately be binding on him has been given by the applicant.” 31. In addition to the foregoing, the Courts within our jurisdiction have numerously held that there can be no Order of Stay of Execution issued in any negative Order that is issued by a Court of law. 32. Based on the provision outlined hereinabove, and the judicial position held by Courts in Kenya, it is important that the positive Orders issued in the Order of 18.02.2026 are correctly identified to enable this Court consider the issue of Stay of Execution pending appeal as sought by the 1 st to 7th Applicants herein. ELC.136 of 2015 RULING 10

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33. A careful perusal of the Order issued on the 18.02.2026 shows that only one Order therein is of a positive nature which is the following; “BASED ON THE GROUND VISIT ON THE 26.01.2026, THE COURT HEREBY DIRECTS THAT THE 1ST AND 3RD PLAINTIFFS HEREIN BE AND ARE HEREBY PROHIBITED FROM ENTERING, OCCUPYING AND/OR DEALING WITH THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE SUIT.” 34. The interpretation of the above Order issued on the 18.02.2026 was that the 1st and 3rd Applicants herein were prohibited from entering, occupying and/or dealing with the suit property herein pending the hearing and determination of the main suit. 35. It is therefore clear that the above Order issued on the 18.02.2026 did only affect the 1st and 3rd Applicants herein and not the 2nd, 4th, 5th, 6th and 7th Applicants in the present Applicant. 36. As such, this Court hereby makes a finding that the Order issued on the 18.02.2026 did not have any positive Orders against the 2nd, 4th, 5th ,6th and 7th Applicants to create a foundation upon which any Order of Stay of Execution against them can be sustained. 37. Consequently therefore, this Court hereby makes a finding that the 2nd, 4th ,5th ,6th and 7th Applicants prayer for an Order of Stay of Execution of the Orders issued on the 18.02.2026 is not merited and cannot be issued as sought in their favour. 38. As regards the 1st and 3rd Applicants herein, this Court indeed takes note that the Order issued on the 18.02.2026 did issue a positive Order directing them to desist from entering, ELC.136 of 2015 RULING 11

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occupying and/or dealing with the suit property pending the hearing and determination of the main suit. 39. As such, the Court is required to consider the prayer for Stay of Execution pending Appeal in line with the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010. 40. In considering an Application For Stay pending Appeal, the following ingredients must be satisfied by the Applicant for the Court to exercise its discretion in his/her favour. 41. The ingredients are whether there is any substantial loss being suffered by the Applicant by the Order issued pending the hearing and determination of the Appeal filed, secondly whether the Applicant did file the Application for Stay of Execution without any unreasonable delay and lastly, whether the Applicant has provided and/or is ready to provide the appropriate security for the due performance of the decree or order that ultimately may be binding on him at the end of the matter. 42. Guided by the above ingredients, the Court will proceed to evaluate the 1st and 3rd Applicant’s facts in the present Applicant and decide if indeed they deserve the Orders of Stay of Execution pending Appeal as has been sought for. INGREDIENT NO.1- SUBSTANCIAL LOSS 43. The first ingredient that the 1 st and 3rd Applicants are required to demonstrate is that the Order of 18.02.2026 is causing them substantial loss as their intended Appeal is awaiting hearing and determination. 44. The 1st and 3rd Applicants did plead that the Orders of 18.02.2026 did have an effect of actually removing them from ELC.136 of 2015 RULING 12

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the suit property and exposing their developments and/or occupation on the same to abuse by the 1st Respondent. 45. The 1st and 3rd Applicants did plead and submit that after the issuance of the Orders dated 18.02.2026, the 1 st Respondent herein together with goons did invade the portions they occupy on the suit property and demolish the developments and/or structures therein to their detriment. 46. The 1st Respondent on the other hand did deny the allegation that he had invaded the 1st and 3rd Applicants portions within the suit property and/or demolished any structures and/or developments that were on the same. 47. During the pendency of the present Application and on the outcry of the 1st to 7th Applicants herein, the Court did undertake a second site visit on the 24.04.2026 and did find that indeed the 1st and 3rd Applicants structures and/or occupation of their portions had been interfered with. 48. It is therefore clear that upon the issuance of the Orders dated 18.02.2026, there was an interference of the 1 st and 3rd Defendant’s portions either by the 1st Respondent and/or other persons not before the Court which resulted to substantial losses to the 1st and 3rd Applicants herein. 49. In essence, this Court is satisfied that the Order of 18.02.2026 has caused and/or is likely to cause substantial loss to the 1 st and 3rd Applicants pending the hearing and determination of their Appeal before the Court of Appeal. INGREDIENT NO.2- APPLICATION FILED WITHOUT UNREASONABLE DELAY ELC.136 of 2015 RULING 13

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50. The second ingredient requires the Court to confirm whether the Application For Stay was filed without any unreasonable delay. 51. The Orders which were directed to the 1 st and 3rd Applicants herein were issued on the 18.02.2026. 52. The present application seeking for Stay of Execution of the said Orders dated 18.02.2026 was filed on the 26.02.2026. 53. The time taken to file the present application from the date of issuance of the Orders being sought to be stayed was less than Fourteen (14) days. 54. This Court therefore makes a finding that the present application was filed promptly and within a reasonable time from the date when the Orders being sought to be stayed were issued. INGREDIENT NO.3- SECURITY FOR DUE PERFORMANCE OF THE DECREE 55. The third and last ingredient is whether the Applicants have presented and/or committed to provide adequate security for the due performance of the Decree as may ultimately be binding at the end of the Appeal. 56. In this ingredient, the Applicants are required to provide security particularly in terms of the costs that might be incurred by the Respondent upon the completion of the Appeal. 57. The main reason for this ingredient is to ensure that before a party file an Appeal, they are truly convinced that the same is ELC.136 of 2015 RULING 14

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merited and not an effort to keep the successful party from enjoying its judgement. 58. In the present application, the 1 st and 3rd Applicants did not provide any security and/or make a commitment to comply with any Orders of security that may be pronounced by the Court. 59. Be as it may, the 1 st and 3rd Applicants having duly successfully demonstrated that they have suffered substantial losses and the present application was filed promptly, the Court will exercise its discretion and still assess the security for costs to be deposited by the 1 st and 3rd Defendants pending the hearing of their intended appeal at Kenya Shillings Two Hundred Thousand (KShs 200,000/-) only. ISSUE NO.4- IS THE PRESENT APPLICATION MERITED OR NOT? 60. The fourth issue for determination is whether the present application is merited or not. 61. Based on the findings made in the three ingredients to be considered during the determination of an application for stay of execution pending appeal, this Court hereby makes a finding that the present application is merited and should be allowed. 62. However, it is crucial to point that the Staying of Execution of the Orders issued on the 18.02.2026 should not be construed to mean that the 1st and 3rd Respondents have a mandatory injunction directing them to re-enter their portions of land within the suit property. 63. The position of the Court is that since the 1 st and 3rd Applicants structures and/or occupation have already been ELC.136 of 2015 RULING 15

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tempered with either by the 1 st Respondent and/or any other persons, the Order of Stay of Execution should be interpreted in a manner to prohibit any further trespass by the 1 st Respondent and/or any other persons acting under his command and/or authority from re-entering, reclaiming and/or further interfering with the portions being claimed by the 1 st and 3rd Applicants pending the hearing and determination of the intended Appeal. ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION? 64. Costs usually follow the event. 65. In the present Application, the costs of the present application will abide by the outcome of the main appeal based on the fact that although the 1st to 7th Applicants did accuse the 1st Respondent to have been the one responsible for the destruction of their structures and/or developments, there was no document and/or evidence tendered herein to that effect. 66. It is therefore pre-mature for this Court to condemn the 1 st Respondent to pay costs where the issue of who is responsible for the destruction of the 1st and 3rd Applicants structures and/or occupation is yet to be determined. 67. However, for the 2nd, 4th, 5th, 6th and 7th Applicants herein, their prayer for an order of stay of execution contained in the present application was not successful and they are condemned to pay costs of the same to the 1 st and 2nd Respondents therein. CONCLUSION 68. In conclusion, this Court hereby makes the following Orders in determination of the present Application; - ELC.136 of 2015 RULING 16

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A. THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 BE AND IS HEREBY ALLOWED IN FAVOUR OF THE 1ST AND 3RD APPLICANTS ONLY. B. THE NOTICE OF MOTION APPLICATION DATED ND TH TH TH 26.02.2026 ON BEHALF OF THE 2 4 ,5 ,6 AND 7TH APPLICANTS AGAINST THE 1ST AND 2ND RESPONDENTS IS HEREBY DISMISSED WITH COSTS. C. THAT ORDER NO.4 IN THE RULING AND DECREE ISSUED ON THE 18.02.2026 AGAINST THE 1ST AND 3RD APPLICANTS IS HEREBY STAYED PENDING THE HEARING AND DETERMINATION OF THE 1ST AND 3RD APPLICANTS APPEAL BEFORE THE COURT OF APPEAL. D.THE ORDER OF STAY OF EXECUTION IN RELATION TO ORDER NO.4 IN THE RULING AND DECREE ISSUED ON 18.02.2026 SHOULD NOT BE CONSTRUED TO MEAN THAT THE 1ST AND 3RD APPLICANTS HEREIN HAVE BEEN GRANTED A MANDATORY INJUNCTION TO RE-ENTER AND/OR RE-OCCUPY THE DISPUTED PORTIONS WITHIN THE SUIT PROPERTY HEREIN. E. THE STAY OF EXECUTION OF THE ORDER NO.4 IN THE RULING AND DECREE ISSUED ON 18.02.2026 IS TO PROHIBIT THE 1ST RESPONDENT IN PERSON AND/OR ANY OTHER PERSONS AND/OR ENTITIES ACTING ON THE COMMAND AND INSTRUCTIONS OF THE 1ST RESPONDENT FROM FURTHER INTERFERING WITH THE 1ST AND 3RD APPLICANTS PORTIONS OF LAND WITHIN THE SUIT PROPERTY PENDING THE HEARING AND DETERMINATION OF THE APPEAL BEFORE THE COURT OF APPEAL. F. THE ORDER OF STAY OF EXECUTION ISSUED BY THIS COURT AGAINST THE ORDER NO. 4 IN THE RULING AND DECREE ISSUED ON THE 18.02.2026 SHALL GRANTED ON CONDITION THAT THE 1ST AND 3RD APPLICANTS HEREIN DEPOSIT A SUM OF KENYA SHILLINGS TWO HUNDRED THOUSAND (KSHS 200,000/-) IN COURT AS SECURITY ELC.136 of 2015 RULING 17

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FOR COSTS WITHIN TWENTY-ONE (21) DAYS FROM THE DATE OF THIS RULING. G.THE COSTS OF THE NOTICE OF MOTION APPLICATION DATED 26.02.2026 AS AGAINST THE 1ST AND 3RD APPLICANTS SHALL ABIDE THE OUTCOME OF THE PENDING APPEAL BEFORE THE COURT OF APPEAL. DATED, SIGNED and DELIVERED at ELDORET this on this 16TH DAY OF SEPTEMBER, 2026. EMMANUEL.M. WASHE JUDGE IN THE PRESENCE OF: Court Assistant: Brian Advocate for 1st to 7th Applicants: Mr. Mwaniki - No appearance Advocate for 1st Respondent: Mr. Momanyi Advocate for 2nd Respondent: Mr. Were – No appearance ELC.136 of 2015 RULING 18

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