Monica Akomo Olayo & 1 other v Ezekiel Odiero Adero

Costs of the appeal are awarded to the Appellants, and shall be payable by the Respondent. The Respondent will also pay to the Appellants the costs of the application dated 23rd October, 2018.” 4. Dissatisfied with the judgement and findings of this court, the Respondent filed a Notice of Appeal. 5. The Respondent has also filed the notice of motion dated 11th July, 2024 within the present appeal, which is the subject of this ruling, expressed to be brought under Order 42 Rule of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap 21 Laws of Kenya in which he seeks the following orders: a. [Spent]. b. [Spent]. c. That the execution and the proceedings to enforce the judgement and decree in Kisumu Succession Appeal No. 3 0f 2019 be stayed pending the hearing of the appeal. d. That this Honourable court be pleased to review and or set aside the conditions for grant of stay of execution issued by the Kisumu Succession Appeal No. 3 of 2019. e. That the costs of the application be provided for. 6. The grounds upon which the application is premised are set out on its face and are in precis that if the execution or other proceedings to enforce the judgement is carried out, the appeal will be rendered nugatory and the Respondent shall suffer irreparable loss and damages. The Respondent further states that he is ready to abide with any conditions that the court may set regarding security. 7. The application is supported by the Respondent’s affidavit that he swore on 11th July, 2024 in which he expounds on the above grounds. He has annexed to his affidavit a notice of appeal dated 19th July, 2021 and a memorandum of appeal that he intends to file in the Court of Appeal. 8. The Respondent reiterates in his affidavit that his intended appeal shall be rendered nugatory if the orders sought in the motion are not granted, resulting in the Appellants being subjected to substantial loss and prejudice. 9. The application is resisted and to that end the Appellants filed a replying affidavit sworn by Nannungi Mariat, Advocate, on 20th September, 2024. Most profoundly, the Appellants’ Advocate refers the court to Ochieng’ J.’s judgement in which the learned Judge stated thus: “ In the result and in order to allow the Environment and Land Court time to determine the question concerning ownership of the suit property [L.R. No. Kisumu/Karateng/884], I allow the appeal and revoke the Certificate of Grant which was issued to the Respondent.” 10. The Appellants have demonstrated through annexture “NM1” to the replying affidavit, which is a judgement delivered on 25th May, 2023 by Asati J. in Kisumu ELC Case No. 30 of 2019 (O.S.) Monica Akomo Olaya v Ezekiel Odiero Adero (Sued as the Legal Administrator of the Estate of Adero Odiero (Deceased) that the question concerning ownership of the property L.R. No. Kisumu/Karateng/884 has since been resolved, whereby the court issued the following reliefs: 11. The parties filed brief submissions on the application, which I have had the occasion of perusing and considering. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16723/eng@2025-10-30 2

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12. Having considered the application, the supporting affidavit, the replying affidavit, the parties’ submissions and the record in its entirety, I discern the issues that emerge that call for my determination to be as follows: a. Whether an order of stay of execution can issue in respect of the judgement of this court that revoked the certificate of grant and the certificate of confirmation of grant issued by the lower court; and b. A determination as to costs. 13. With regard to the first issue, the persuasion that I take is that a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules applies only where there is a decree or order capable of execution. The juedgement and order of 12th July, 2021 that revoked the certificate of grant and the certificate of confirmation of grant that had been issued by the lower court is not an executable order as it did not direct any act such as payment, delivery or performance. It simply nullified the grant, thereby rendering the Respondent to cease being the administrator of the Deceased’s estate. 14. Hence, a stay of execution of the judgement through which the order of revocation cannot practically or legally operate for the simple reason that there is nothing to “execute”. The revocation took effect immediately upon delivery of the judgement and the former administrator (the Respondent) ceased to have any authority over the estate. 15. In the case of Re Estate of Njoroge Mburu (Deceased) [2018] eKLR the court held that an order revoking a grant is not an executable order and therefore cannot be stayed. The court, in Re Estate of Gitau (Deceased) [2020] eKLR reiterated that a stay of execution does not apply to an order revoking a grant. 16. The other reason as to why the Respondent’s application cannot be granted is that in light of the Environment and Land Court’s decision declaring the 1st Appellant herein to have acquired title to the property L.R. No. Kisumu/Karateng/884 from the Deceased’s estate by adverse possession. 17. It is undisputed that subsequent to this court’s judgment revoking the certificate of grant and certificate of confirmation of grant on appeal, the Environment and Land Court has since delivered judgment, declaring the 1st Appellant as the lawful owner of that property in Kisumu ELC Case No. 30 of 2019 (O.S.) Monica Akomo Olaya v Ezekiel Odiero Adero (Sued as the Legal Administrator of the Estate of Adero Odiero (Deceased). 18. There is no evidence presented by the Respondent to show that that decision has been stayed, reviewed or set aside. 19. Under Article 162(2)(b) of the Constitution, the Environment and Land Court is a court of equal status to this court, with exclusive jurisdiction to determine disputes relating to ownership, use and occupation of land.st Appellant and therefore removes the property L.R. No. Kisumu/Karateng/884 from the estate of the deceased. Consequently, this Court, sitting as a succession court, cannot vary, stay, or override the ELC’s decision. Its determination vests ownership in the 1st Appellant and therefore removes the property L.R. No. Kisumu/Karateng/884 from the estate of the deceased. 20. It follows then that the revoked grant cannot operate over the said property as it is not part of the Deceased’s estate. The effect of the ELC judgment is to extinguish the estate’s interest in that property. Therefore, even if this Court were to grant a stay of its judgment revoking the grant, such a stay would serve no practical purpose, as the subject matter of the litigation is no longer part of the Deceased’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16723/eng@2025-10-30 3

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estate. Courts do not issue orders in vain or act in futility. (See Republic v Kenya Revenue Authority Ex Parte W.E.C Lines Ltd [2006] eKLR). 21. While this Court has the jurisdiction under Order 42 Rule 6 to grant stay of execution pending appeal, that discretion must be exercised judicially and on the basis of utility. 22. The purpose of stay is to preserve the subject matter of the appeal (Butt v Rent Restriction Tribunal [1982] KLR 417). In the present case, there is no subject matter left to preserve — the estate no longer owns the land in question following the binding ELC judgment. 23. Accordingly, the Applicant cannot demonstrate substantial loss, as the revocation of the grant, (particularly with regard to the property Kisumu/Karateng/884) has become inconsequential in view of the ELC’s finding, as stay would not affect ownership of the property already adjudicated upon by a court of competent jurisdiction. 24. In view of the foregoing, there is nothing left to stay in practical terms. In the circumstances, the Respondent’s application lacks merit. The upshot is then that the application dated 11th July, 2024 is dismissed. 25. With regard to the second issue which is a determination as to who should bear the costs of the application, I order that the Respondent bears the Appellants’ costs of the application. 26. This appeal will be mentioned on 25th February, 2026 for further directions. DELIVERED (VIRTUALLY), DATED AND SIGNED THIS 30TH OCTOBER, 2025. JOE M. OMIDO JUDGE For the Appellants: Ms. Nannungi. For the Repondent: No appearance. Court Assistant: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16723/eng@2025-10-30 4

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