Estate of Lomaria Kotoruk alias Plimo Kotoruk (Deceased) represented by Susan Cherop v Psinen (Environment and Land Case 54 of 2016) [2025] KEELC 8197 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has met the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules pending intended appeal
- 2.Whether a temporary injunction should issue restraining the decree holder from cutting down, destroying or wasting the maize crops and fence on the suit property pending appeal
Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
They were not; there was inordinate unexplained delay, the decree had been implemented, substantial loss was unsubstantiated and no specific security was offered
Judgment was delivered on 16/6/2025 and the 90-day automatic stay expired on 16/9/2025. The application was filed on 3/10/2025, about 16 days after expiry, with no explanation. Vacant possession had been effected on 21/9/2025 and register entries changed. The applicant failed to demonstrate substantial loss or that the appeal would be rendered nugatory, and offered no specific security.
Whether a temporary injunction pending appeal should issue to preserve the maize crops and fence
No, because an injunction preserves the status quo and the status quo had already changed with vacant possession and transfer of title
The purpose of an injunction is to keep matters in status quo, but the respondent had already taken vacant possession peacefully with police security, the decree had been implemented and title issued on 3/10/2025. Reversing those changes would injure the successful respondent's right to enjoy the fruits of the judgment, and the applicant failed to prove sufficient cause.
Legal principles established
#- Executing a decree per se does not amount to substantial loss; the applicant must show the execution will irreparably negate the essential core of the appeal
- A court should not be used as an instrument to enforce an illegality, and its orders are not made in vain
- Notice of appeal does not operate as a stay; stay requires substantial loss, no unreasonable delay, and security
Court orders
#- 1.The application dated 3/10/2025 is dismissed
- 2.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of execution of the decree and temporary injunction restraining cutting of maize crops and fence pending appeal
Inordinate unexplained delay, decree already implemented, no substantial loss demonstrated and no security offered
Costs
Dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that I find the application dated 3/10/2025 lacking merits. It is dismissed with costs.
Substantial loss, as held in Kenya Shell Limited -vs- Benjamin Karuga Kibiru & Another (1982-88) 1, is the very cornerstone of stay.
A court of law should not be used as an instrument to enforce an illegality.
The purpose of security is to guarantee the due performance of the decree but not to punish the judgment debtor
Issues in the judgment
#The case number of the application is not stated anywhere in the ruling
Citation of Order 42 Rule 6 appears with garbled text: 'Order 42 Rule 6 (2) (1) of the Civil Procedure Rules'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Estate of Lomaria Kotoruk alias Plimo Kotoruk (Deceased) represented by Susan Cherop v Psinen (Environment and Land Case 54 of 2016) [2025] KEELC 8197 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8197/eng@2025-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.